My brethren have set out pretty fully the facts in the majority opinion, holding them sufficient to justify the verdict of the jury assessing the death penalty. I have given the matter very serious consideration, and while I would be cautious in dissenting on a question of fact ascertained by the jury, yet I do not believe the evidence in this case is sufficient to justify the death penalty, which is predicated in this case alone upon express malice. If there be not express malice shown so as to justify the infliction of the death penalty, the judgment ought to be reversed. Had the jury assessed a verdict of murder in the second degree, with a severe penalty, I would not have dissented. There is too much uncertainty about the facts, as shown by the record, in my judgment, to justify the infliction of death. There is not sufficient evidence, as I read the statement of facts, to show express malice. The evidence for the State is full of contradictions on the most material facts. The old mother contradicts herself about every material question almost upon which she does testify, not only as to the details of the homicide, but all the occurrences of the night upon which the homicide is said to have been committed. Her testimony is out of harmony with that of her grandson, Agular. The officers contradict these witnesses about the condition of things when they reached the room where the parties were, and the killing occurred. The fact, if it be true, that the old mother of the deceased and the grandmother of Agular, was able to hold appellant down on the bed and he on top of her, and prevent his use of the knife for twenty-five or thirty minutes, would be evidence of the fact that the man was in an inebriated condition, as he claimed, and this, taken in connection with the fact that the deceased and defendant had been friends to the time of the difficulty, and had been drinking together that night, appellant was drunk, would show *Page 657 a want of express malice. The facts show, from the State's standpoint, a sudden quarrel and consequent killing. This is much enhanced by defense evidence. No previous ill-will, animosity, or trouble is shown to have ever existed before this night, and they had been friendly and drinking together that night. The evidence is confusing as to the condition of things, and contradictory on almost every question or point raised, especially the evidence of the mother of deceased. The evidence of the officers, to some extent, breaks the force of the evidence of some of the witnesses that he was drunk; they said they thought he was simulating, but the facts, the amount of the intoxicants that had been taken, are in the case as a part of it and must remain, so far as the record is concerned. These officers thought he was simulating. That was only a conclusion on their part. While drunkenness is not an excuse for crime under our statute, at least the peculiar character of drunkenness shown here, still, it is a matter our statute has humanely provided may be taken into consideration in ascertaining the degree of homicide and in mitigation of the penalty attached to the degree found. Taking the testimony in its entirety and all the circumstances and the manner of the witnesses testifying in connection with the immediate facts, as shown by the testimony of all the witnesses in regard to the condition of the room where the parties were and where the homicide occurred, in my judgment, they are not sufficiently cogent to justify the hanging of this Mexican. I am unwilling to sanction the punishment under the state of case made by the record.
For the above reasons I most respectfully enter my dissent. I believe the case ought to be reversed and the cause remanded for another trial.