Stewart v. State

29 S.W. 1083, 34 Tex. Crim. 214, 1895 Tex. Crim. App. LEXIS 61

Opinion

HURT, Presiding Judge.

Appellant, having been convicted for murder of the second degree, and his punishment assessed at twenty years’ confinement in the penitentiary, appeals. We have given the statement of facts in this case a most searching examination. This was necessary in order to correctly pass upon the charge of the court. Appellant, in his motion for new trial, objects to the charge of the court, and we are called upon to say whether there was such error in the charge as to injure the rights of appellant when the whole charge is looked to in connection with the facts of the case. We are of opinion that there is no such error in the charge. It submitted to the jury, very favorably to appellant, the law of the case. Whether the road obstructed by deceased was public or private was immaterial when the circumstances attending this homicide are considered; for conceding that the road was public, and that the deceased had no right to obstruct it, and that the defendant had a right to remove the obstruc tions, yet if the theory of the case for the State be true, which was supported by a number of witnesses, appellant would be guilty of nothing less than murder in the second degree. The court, however, submitted the question of manslaughter to the jury. This was of doubtful propriety. The evidence presents a case of murder in the second degree, beyond any question, or a clear case of self-defense. The jury adopted the theory of the State, and this court can not say they were wrong, because they were the judges of the credibility of the witnesses and the weight to be given to their testimony.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.