Simmons v. State

5 S.W. 208, 23 Tex. Ct. App. 653, 1887 Tex. Crim. App. LEXIS 141

• Court: Court of Appeals of Texas
• Decided: June 22, 1887
• Docket: No. 5584
• Status: Published

Opinion

Hurt, Judge.

Under an indictment charging the murder of one Walthall, appellant was convicted of the second degree of that offense.

When the charge was read to the jury appellant requested of the court the privilege of inspecting it, in order to the filing of exceptions thereto, it having been objected to generally. The court declined the request, stating to counsel that they could make and file exceptions until the jury returned with their verdict; to which the appellant excepted. After verdict appellant filed exceptions to the charge, and these we will consider as though filed before the return of the verdict.

Looking to the exceptions we find the first ground of complaint to be that the court charged upon murder of the first degree. In this there was no error; first, because there was some ' evidence tending to show a premeditated killing; second, because to a complete exposition of the elements of murder of the second degree, this charge was necessary.

Charge twenty-ninth is excepted to upon the ground that “it instructed the jury that the passion and adequate cause are to be established by proof beyond a reasonable doubt.” The record does not present this ground of exception in the light in which it is placed by counsel for appellant. The court charged, in effect, that if there was a reasonable doubt that the homicide was murder of the second degree, then the jury should acquit of that offensej but that, before they could convict of manslaughter, they must believe, beyond a reasonable doubt, that all the elements of this offense existed.

Opinion delivered, June 22, 1887.

There is evidence showing that, just before appellant stabbed deceased, the latter applied to the former the opprobrious words “damned son of a bitch.” The charge is excepted to because it does not instruct upon the law of manslaughter arising upon insulting words used toward a female relative. We do not think this language comes within the meaning of the statute upon this subject. The term used is rather a sudden expression of anger and contempt, and, when used, no one understands it to be directed at the mother of the person to whom used. It is a lamentable fact that this mode of expression is of too common use in the country. Conceding, though, that this view is incorrect, by reference to the charge on manslaughter it will be found so comprehensive as to clearly embrace this ground of provocation, and it was doubtless considered by the jury.

We have disposed of all the exceptions to the charge, and find no such error as requires a reversal of the judgment. We have also carefully examined the motion for a new trial, and find no grounds therein, and find no sufficient reason for disturbing this verdict and judgment. The judgment is accordingly affirmed.

Affirmed.