Summers v. State

5 Tex. Ct. App. 365

• Court: Court of Appeals of Texas
• Decided: July 1, 1879
• Status: Published

Opinion

Ector, P. J.

The defendant was indicted in the District Court of Nueces County, for the murder of Benito Martinez,, on September 2,1878. He was tried at the same term of the court, convicted of murder in the second degree, and his punishment assessed at ninety-nine years’ confinement in the State penitentiary. The indictment alleges that the murder was committed with a certain large stick. There is no assignment of errors.

It is insisted, on the part of the defendant, that it was not established by legal evidence that the death of Martinez was caused by the blow of the stick. At the time of the fatal blow, the defendant and the deceased were in the employ of one Kennedy, and were encamped in his pasture. The defendant and the deceased had an altercation early in the morning, and the defendant was seen leaving the tent with an axe in his hand, some half an hour before the fatal blow was stricken, and the axe was taken away from him by the witness Koberts, “because he was afraid of trouble.”

The witness Henry Jones testified “ that James Summers and deceased, early in the morning, were talking very hurriedly; in not more than fifteen minutes, he saw Summers come from the other side of camp with a stick; don’t know where he got the stick; he didn’t come to camp with the stick; don’t know how far he went after it. The Mexican was on one side of camp, and Summers on the other. Jim was the man struck deceased Mexican. Deceased was struck on the head; he fell. He was kneeling, lighting matches, with a butcher-knife lying five or six feet from his side. I helped to carry him in camp ; poured water on his head. * * * Deceased always carried a knife. Didn’t know anything about there being a fight until blow was struck.”

The testimony further shows that Martinez, shortly after receiving, the blow, became unconscious, and Dr. Arthur E. Spohn was sent by Mr. Kennedy to see Martinez. Dr. Spohn, a witness for the State, in his testimony, says : “ He was a medical practitioner. On the second of September, 1878, was called upon to go and see Benito Martinez, then lying at a camp near Kennedy’s pasture ; found the deceased breathing, but unconscious ; had a contusion upon the left side of the head, but no exterior evidence of fractured skull; removed,the patient to town, and attended him until the next day, when he died; after death, made a post-mortem examination, but I decline to state the cause of the man’s death, as my knowledge was obtained by professional skill and from the deductions of experience, which I consider my own property, and which the county of Nueces has persistently refused to pay for. I have no knowledge of the actual cause of the man’s death save through the post-mortem examination alluded to.” The court sustained the objection of Dr. Spohn in refusing to disclose the knowledge acquired in said examination, on the ground that he, not being paid, could not be compelled to testify as to the same.

Afterwards the State placed the witness Charles Benson on the stand, who testified “ that he was on the coroner’s jury that held the inquest upon the body of Benito Martinez; was present when Dr. Spohn made, before the coroner’s jury, a post-mortem examination; saw two fractures of the skull of the deceased, on the left side of the head; could see them plainly; also saw the brains were in a low condition. They had lumps of blood among them.” The testimony of Benson was admitted, over the objections of the defendant, and he took a bill of exceptions, which, after reciting the facts in regard to the refusal of Dr. Spohn to testify; and the rulings of the court thereupon, says : “ And afterwards the State attempted to prove by Benson, who was not an expert, and knew nothing of the science of surgery or anatomy, that the blow caused the death of the deceased, over the objections of the defendant; to which ruling of the court the defendant by his counsel excepts, and tenders this his bill of exceptions, that the same may be signed and made a part of the record.”

The court, before signing, added the following explana-tion; “The above bill of exceptions is allowed and approved, with the following explanation and correction: Said Benson having served on the coroner’s inquest, and also being present when the post-mortem, examination was made-by Dr. Spohn on the body of said deceased, he was permitted to testify as to such facts as he had learned, and as to what he had seen during said post-mortem examination,, to wit, that during' said post-mortem examination Dr. Spohn called his attention to a fracture in the skull of' deceased, which he saw, and also clots of congealed blood upon the brain of said deceased, where the brain was exposed ; but said Benson did not testify as to his opinion,, but only to the above facts.” It is submitted on the part of the defendant that the ruling of the court was erroneous,, because the facts disclosed that there was better evidence than Benson’s as to what was the cause of the death of the-deceased, and that it is essential to the pure administration of justice that the rule should be enforced which requires-the best evidence of which the case, in its nature, is susceptible. When the testimony of Benson was offered, there was-no objection of this kind made to it. Exceptions to the admission of evidence on the trial, when no reason is-assigned for objecting to it, will not be sustained when the-evidence is obviously competent as tending to prove any of" the facts put in issue by the pleadings.

The court may compel a physician to testify as to the result of a post-mortem examination; and it is to be regretted that a member of a profession so distinguished for liberal culture and high sense of honor and duty should refuse to* testify in a cause pending before the courts of his country, involving the life or liberty of a fellow-being and the-rightful administration of the laws of a common country. Dr. Spohn has doubtless been misled, in taking the position he did, by the misconceptions of certain writers on medical-jurisprudence. The question has been recently before the Supreme Court of Alabama, in the case of Ex parte Dement, and, after a thorough examination of the American, and English cases bearing on the question, the court held. that the law allows no excuse for withholding evidence which is relevant to the matters in question before its tribunal ; that the administration of justice being a source of mutual benefit to all the members of a community, each is under obligation to aid in furthering it, as a matter of public duty ; and the same principle which justifies the bringing of the mechanic from the workshop, the merchant from his store-house, the broker from his ’change, or the lawyer from his engagements to testify in regard to some matter which he has learned in the exercise of his art or profession •authorizes the summoning of a- physician, or surgeon, or skilled apothecary to testify of a like matter, when relevant to a cause, pending for determination in a judicial tribunal-; and that no court would he excusable in exonerating them from giving such evidence without pay, on the ground that it would be a professional opinion. Ex parte Dement, 53 Ala. 389. A medical expert could not be compelled to make & post-mortem examination unless paid for it; but, an ■examination having already been made by him, he could be ■compelled to disclose the result of that examination.

The appellant in this case, however, cannot be heard to ■complain of the ruling of this court in sustaining the objections of Dr. Spohn in refusing to disclose the knowledge acquired in said post-mortem examination. If the undisclosed facts would have benefited the defendant, his counsel should have made Dr. Spohn their own witness, and have asked the court to enforce the law in their own behalf. This was not done, and no exception was taken by defendant to the action of the court in sustaining said objections •of Dr. Spohn. The result of. the ruling was not to weaken the defendant’s cause.

The evidence of the witness Benson was properly allowed to go to the jury. We can perceive no reason , why he ••should not be permitted to testify to such facts as he had •seen during the post-mortem examination. And this (as appears from the statement of facts and bill of exceptions) is what he did, without expressing any opinion as to the. cause of the death of Martinez.

We believe the evidence shows that the defendant struck the deceased on the head with a stick, and that the blow caused his death. There is no evidence in the statement of facts to indicate that it could have occurred from any other cause.

It is contended by the appellant that the court erred in its charge to the jury, and in refusing to give the special instructions asked by appellant. The fourth subdivision of the charge of the court is as follows : “ Express malice is where one, with a deliberate intent, kills another with an instrument likely to produce death.” This is not a correct definition of “ express malice.” The fact that the killing is deliberately done is not sufficient to make it a case of murder in the first degree.

Express malice is where a man, with a cool and sedate mind, in pursuance of a formed designed to kill another, or to inflict upon him some serious bodily injury which would probably end in depriving him of life, does kill such person. And the existence of express malice on the part of the slayer is never presumed from the mere act of killing another with a deadly weapon, by its intentional and deliberate use against the person killed. When one person kills another with an instrument likely to produce death, it would not be a killing with express malice unless the act possessed the other ingredients of murder in the first degree. The use of a deadly weapon has been frequently singled out as affording in itself a presumption in law that the killing was malicious. Mr. Wharton says : “ It is incorrect to tell a jury that malice, when the weapon is deadly, is a presumption of law. But while telling them that whether there is or is not malice is a point to be determined by a scrutiny of all the facts in the case, it is proper to remind them that there are certain rules of probable reasoning which it is right for them to keep in view.. And one of these rules is, that where a responsible person, without authority, and under such circumstances as, indicate deliberation, without apparent provocation or necessity, wounds another in a vital part with a deadly weapon, then malice is to be inferred.” Whart. on Horn., 2d ed.,„ sec. 671, and cases cited in note.

The charge of the court correctly defined “ implied malice.” The jury did not find the defendant guilty of murder in the first degree. The appellant, therefore, cannot be heard to complain of this error in the charge in regard to express-malice.

The seventh subdivision of the charge of the court is as follows: “ Taking the above definition as your guide, if you believe from the evidence that the defendant killed Benito Martinez, in Nueces County, with malice impress or implied, with an instrument likely to produce death, as charged in the indictment, you will find him guilty as charged in the indictment, and the degree of the offence.” It is evident that the word “ impress,” in this instruction, is a clerical error, and should be “ express.” But, admit it is correctly copied from the charge of the court; the defendant would not be entitled on this account to a reversal of the judgment, as the jury found the defendant guilty of murder in the-second degree. There was no evidence in the case which required a charge upon any lower degree of culpable homicide than murder in the second degree.

The court had already, in effect, submitted to the jury, in his main charge, such of the special instructions asked by appellant as were enunciations of the law and applicable to* the case as made by the evidence. The seventh subdivision of the charge of the court obviated the necessity of giving the following instruction asked by appellant, to wit: “If the jury believe from the evidence, that the defendant did not intend to kill the deceased, and the State has failed to prove that death would ordinarily have resulted from the •use of the means in the hands of the defendant, then the jury may acquit the defendant of murder, and find the defendant guilty of negligent homicide.” The appellant also asked the following charge : “ Malice and the intent to kill ■are material allegations in an indictment for murder, and must be proved affirmatively by the State.” When a defendant is on trial for murder, the prosecution is not required •to prove an intent on the part of the slayer to take life when he committed the offence, before he can be convicted of murder. Both under the common law and our Criminal Code, the intent to do serious bodily harm, without legal provocation, excuse, or justification, followed up by the homicide, constitutes murder. Whart. on Horn., sec. 40; McCoy v. The State, 25 Texas, 33. Before we pass from this question, we will take occasion to repeat what we have heretofore said in other cases, and it is this: when the judge presiding at the trial has doubts as to the propriety of giving any instruction asked by a defendant, he should solve that doubt in defendant’s favor.

We now come to-the consideration of the question raised in defendant’s second bill of exceptions. When the jury first came into court and announced that they had agreed upon their verdict, it was handed to the clerk of the court, and read by him. It appeared therefrom that the jury had found the defendant guilty of murder in the second degree, and assessed his punishment at confinement in the penitentiary for “ the term of his natural life.” Whereupon the court referred the verdict back to the jury, and also referred them to the charge of the court, so as to show that the punishment should be for a term of years. The same paper was then altered by erasing the words “ of his natural life,” and the words “ ninety-nine years ” were interlined. This change was made during the absence of all of defendant’s counsel, and without their being called, and without the consent of the accused; to which he excepted, and the question is saved by a bill of exceptions. It is evident from the bill of exceptions that said erasure and interlineation were made by the jury, and that when the verdict was returned and read the defendant was present in court.

The statute requires, in all cases of felony, that the defendant must be present when the verdict is read, but does not require that his counsel shall also be present or be called. It is a common courtesy in cases of this kind to lipve the defendant’s counsel called, but a failure to do this will- not vitiate the verdict.

We believe that, under the circumstances disclosed by the record, it was proper for the court to refer the verdict back to the jury and call their attention to the charge of. the court, as was done in this case, and that in correcting their verdict the jury simply did their duty. No wrong or injustice was done thereby to the defendant. The objections to the verdict are altogether too technical. The jury, after finding the defendant guilty of murder in the second degree, did not transcend the limit prescribed by the statute in assessing his punishment. Therefore, this court has no authority to reverse the judgment on account of the long duration of the punishment.

Believing that the accused has had a fair trial, and been legally convicted, the judgment of the District Court is ■affirmed:

Affirmed.