BERRY, Judge.
The appellants were convicted in the District Court of Brown County for the offense of murder, and their punishment assessed at confinement in the penitentiary for twenty-five years.
Appellants and one Willman were charged with the murder
of Jack McCurdy in Comanche County in 1921. The parties charged were first tried separately; they were convicted and all cases were reversed upon appeal. Howard v. State, 242 S. W. 739; Willman v. State, 242 S. W. 746; Walker v. State, 242 S. W. 749. The parties were again tried and convicted and upon appeal the cases were again reversed. 252 S. W. 543. After this reversal Willman was again tried and convicted and his case this court affirmed. 268 S. W. 933. In the cases above referred to a sufficient statement of the facts will be found.
By bill of exceptions No. 1 appellants complain that when the witness Henry was on the stand he was permitted over objection of the defendant to state in substance that on the next morning after the alleged killing had taken place the night before that he went back to his home and hid a certain pair of spurs belonging to the deceased, north of his house some 40 or 50 yards and hid a whiskey coil or piece of pipe soldered to the top of a can, the same being the property of said witness and another party, and that thereafter the sheriff of Comanche County and his two deputies were permitted while testifying for the State to state over the objections of the defendant that on one occasion some twenty days after the offense was supposed to have happened, they went in company with the accomplice witness to the scene of the supposed killing and under Henry’s direction they found the articles, that is the spurs and the whiskey coil where Henry had theretofore testified that he had hid them. The court in signing this bill states that the sheriff and his deputies never testified anything that the said Henry told them, and states that the statement of facts will bear the court out in making this statement. In view of the court’s qualification to the bill, we have examined the testimony of the witnesses named and we fail to find where they gave any such testimony. On the contrary, we find that the testimony of said witnesses as given on this trial was held admissible by this court in the first appeal of these cases. Howard v. State, 242 S. W. 739; Willman v. State, 242 S. W. 746; Walker v. State, 242 S. W. 749.
By bill of exceptions No. 2 appellants complain that while the witnesses Arther, Edwards and Marshall were on the stand testifying in behalf of the state they were each permitted to testify and did testify over defendant’s objections in substance and effect:
That on an occasion about 20 days after the alleged homicide occurred they visited the scene of the supposed homicide in
company with the accomplice witness, Earl Henry, and in his company and under his direction that they found three certain piles of ashes or certain piles of ashes some eight or ten steps southwest of the home of W. W. Willman, and at a place where the accomplice witness, Henry, had pointed out to them where he claimed the offense occurred, and that they, the witnesses, dug under these piles of ashes and the ground thereunder was moist while around the ashes it was dry and hard.
In signing this bill the trial judge says that the statement in said bill of exceptions with reference to Arther, Edwards and Marshall’s testimony is not true, and that no exception was ever taken, and the statement of facts in the case will show that the statements in said bill of exception is untrue. Under this condition of the record, we cannot do otherwise than hold that the bill fails to manifest any error.
By bill No. 3, appellants complain that while the defendants Ed Walker and Howard, and while Mrs. Willman and Mrs. Howard were on the stand testifying, they were each forced, to testify and did testify over the defendant’s objections that on the night after the supposed homicide had occurred and beginning about 10 or 11 o’clock on the night the homicide was supposed to have happened about dark that each of them took some part in making some whiskey or boiling off some mash in the home of W. W. Willman, at which place the offense was supposed to have happened; and they were forced over the objections of the defendants to detail and go into the minutest descriptions of the details of such offense and such act and in every particular thereof. This bill is approved by the court with the qualifications that Mrs. Howard did not testify anything about the whiskey made at Willman’s that night; and that the first that was testified about whiskey being made at Willman’s that night was by Ed Walker himself in direct examination by Mr. Callaway; and that the whiskey was again referred to by witness Howard in his direct examination by Callaway; and the whiskey matter was first referred to by Mrs. Willman in direct examination by Mr. Callaway when she said “I did not tell them (meaning the grand jury) the truth about it because we were making whiskey down there and we did not want them to know it.” The court further states that he limited all testimony as to whiskey making brought out by the state to the credibility of the witnesses and allowed it for no other purposes. Under this condition of the record, the bill of exceptions No. 3 fails to show any error. Art. 811, Vernon’s C. C. P., and many authorities there collated.
Appellants also complain at the court’s action in refusing to give their special charges to the jury. The first of these was a peremptory instruction to acquit and it was properly refused.
The second charge asked the court to instruct the jury as a matter of law that malice aforethought was not in the case. A reference to the facts disclosed by this record and detailed in the former opinions of this court in these cases is sufficient, we think, to justify the statement that no error was committed by the court in refusing this charge.
By special charge No. 3, appellants sought to have the court charge on the presumption arising from the use of a weapon which was not per se deadly. The special charge offered on this question was not correct. Among other things it asks the court to instruct the jury that
“If you should believe and find from the evidence that Ed Walker struck and killed Jack McCurdy with something, this fact alone would not show that Ed Walker intended to kill deceased at the time he struck such blow, but you must first find and believe beyond a reasonable doubt from other facts and circumstances in evidence before you, that the said Ed Walker had the specific intent to kill deceased, and unless you so find the fact to be from such other facts and circumstances in evidence, then you Will acquit the defendant of any grade of culpable homicide.”
This charge is not correct and did not state the law. It is erroneous in the assumption that the fact of Walker’s striking the deceased is as a matter of law insufficient within itself to show an intent to kill. And it is further erroneous in requiring the jury to believe beyond a reasonable doubt from other facts and circumstances in evidence besides the striking of the blow that Walker intended to kill the deceased.
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BERRY, Judge.
The appellants were convicted in the District Court of Brown County for the offense of murder, and their punishment assessed at confinement in the penitentiary for twenty-five years.
Appellants and one Willman were charged with the murder
of Jack McCurdy in Comanche County in 1921. The parties charged were first tried separately; they were convicted and all cases were reversed upon appeal. Howard v. State, 242 S. W. 739; Willman v. State, 242 S. W. 746; Walker v. State, 242 S. W. 749. The parties were again tried and convicted and upon appeal the cases were again reversed. 252 S. W. 543. After this reversal Willman was again tried and convicted and his case this court affirmed. 268 S. W. 933. In the cases above referred to a sufficient statement of the facts will be found.
By bill of exceptions No. 1 appellants complain that when the witness Henry was on the stand he was permitted over objection of the defendant to state in substance that on the next morning after the alleged killing had taken place the night before that he went back to his home and hid a certain pair of spurs belonging to the deceased, north of his house some 40 or 50 yards and hid a whiskey coil or piece of pipe soldered to the top of a can, the same being the property of said witness and another party, and that thereafter the sheriff of Comanche County and his two deputies were permitted while testifying for the State to state over the objections of the defendant that on one occasion some twenty days after the offense was supposed to have happened, they went in company with the accomplice witness to the scene of the supposed killing and under Henry’s direction they found the articles, that is the spurs and the whiskey coil where Henry had theretofore testified that he had hid them. The court in signing this bill states that the sheriff and his deputies never testified anything that the said Henry told them, and states that the statement of facts will bear the court out in making this statement. In view of the court’s qualification to the bill, we have examined the testimony of the witnesses named and we fail to find where they gave any such testimony. On the contrary, we find that the testimony of said witnesses as given on this trial was held admissible by this court in the first appeal of these cases. Howard v. State, 242 S. W. 739; Willman v. State, 242 S. W. 746; Walker v. State, 242 S. W. 749.
By bill of exceptions No. 2 appellants complain that while the witnesses Arther, Edwards and Marshall were on the stand testifying in behalf of the state they were each permitted to testify and did testify over defendant’s objections in substance and effect:
That on an occasion about 20 days after the alleged homicide occurred they visited the scene of the supposed homicide in
company with the accomplice witness, Earl Henry, and in his company and under his direction that they found three certain piles of ashes or certain piles of ashes some eight or ten steps southwest of the home of W. W. Willman, and at a place where the accomplice witness, Henry, had pointed out to them where he claimed the offense occurred, and that they, the witnesses, dug under these piles of ashes and the ground thereunder was moist while around the ashes it was dry and hard.
In signing this bill the trial judge says that the statement in said bill of exceptions with reference to Arther, Edwards and Marshall’s testimony is not true, and that no exception was ever taken, and the statement of facts in the case will show that the statements in said bill of exception is untrue. Under this condition of the record, we cannot do otherwise than hold that the bill fails to manifest any error.
By bill No. 3, appellants complain that while the defendants Ed Walker and Howard, and while Mrs. Willman and Mrs. Howard were on the stand testifying, they were each forced, to testify and did testify over the defendant’s objections that on the night after the supposed homicide had occurred and beginning about 10 or 11 o’clock on the night the homicide was supposed to have happened about dark that each of them took some part in making some whiskey or boiling off some mash in the home of W. W. Willman, at which place the offense was supposed to have happened; and they were forced over the objections of the defendants to detail and go into the minutest descriptions of the details of such offense and such act and in every particular thereof. This bill is approved by the court with the qualifications that Mrs. Howard did not testify anything about the whiskey made at Willman’s that night; and that the first that was testified about whiskey being made at Willman’s that night was by Ed Walker himself in direct examination by Mr. Callaway; and that the whiskey was again referred to by witness Howard in his direct examination by Callaway; and the whiskey matter was first referred to by Mrs. Willman in direct examination by Mr. Callaway when she said “I did not tell them (meaning the grand jury) the truth about it because we were making whiskey down there and we did not want them to know it.” The court further states that he limited all testimony as to whiskey making brought out by the state to the credibility of the witnesses and allowed it for no other purposes. Under this condition of the record, the bill of exceptions No. 3 fails to show any error. Art. 811, Vernon’s C. C. P., and many authorities there collated.
Appellants also complain at the court’s action in refusing to give their special charges to the jury. The first of these was a peremptory instruction to acquit and it was properly refused.
The second charge asked the court to instruct the jury as a matter of law that malice aforethought was not in the case. A reference to the facts disclosed by this record and detailed in the former opinions of this court in these cases is sufficient, we think, to justify the statement that no error was committed by the court in refusing this charge.
By special charge No. 3, appellants sought to have the court charge on the presumption arising from the use of a weapon which was not per se deadly. The special charge offered on this question was not correct. Among other things it asks the court to instruct the jury that
“If you should believe and find from the evidence that Ed Walker struck and killed Jack McCurdy with something, this fact alone would not show that Ed Walker intended to kill deceased at the time he struck such blow, but you must first find and believe beyond a reasonable doubt from other facts and circumstances in evidence before you, that the said Ed Walker had the specific intent to kill deceased, and unless you so find the fact to be from such other facts and circumstances in evidence, then you Will acquit the defendant of any grade of culpable homicide.”
This charge is not correct and did not state the law. It is erroneous in the assumption that the fact of Walker’s striking the deceased is as a matter of law insufficient within itself to show an intent to kill. And it is further erroneous in requiring the jury to believe beyond a reasonable doubt from other facts and circumstances in evidence besides the striking of the blow that Walker intended to kill the deceased. The jury had a right to consider all the facts and circumstances, including the striking of the lick itself, in determining the appellant’s intent at the time he acted, and the failure to give the special charge embodying the foregoing propositions was not error. Again we hold that we would not be authorized to reverse this case on account of the court’s failure to give this charge because under the entire record such an omission was not calculated to injure the right of the appellants. Art 743, Vernon’s C. C. P.
By special charge No. 4, appellants sought to have the court to charge the jury on the question of manslaughter. There was no manslaughter in the case. If the state’s testimony is true the appellant and his co-principals called the deceased out
and deliberately beat him to death, wrapped his body in a quilt, carried and laid him on a railroad track, and told their co-principal Henry if he told it they would kill him. There is utterly lacking in the case any fact or circumstance tending to show either adequate cause or sudden passion viewed from the state’s standpoint. The appellants’ defense was an alibi and of course the testimony showing an alibi did not raise the issue of manslaughter.
The other special charges offered, where they correctly state the law, were in our opinion fully covered by the court in his main charge to the jury.
In fact, we think that practically every question of moment raised by the appellants in this case and not discussed herein has been decided adversely to their contention in the former appeal of the cases of these appellants and their co-principal Willman.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.