This appeal is from a conviction of murder in the first degree. The crime having been committed whilst the Constitution of 1869 was in force, and which authorized the proceeding, the jury, under a proper charge by the judge who presided at the trial, exercised their discretion of substitution in lieu of the death penalty, and returned their verdict as follows: “We, the jury, find the defendant guilty of murder in the first degree, and assess the punishment at confinement in the penitentiary for life.” Motions for new trial and in arrest of judgment were made and overruled, and final judgment entered in accordance with the verdict of the jury. From the judgment of the District Court this appeal is prosecuted.
Counsel for the appellant have assigned a great many errors, on which apparent reliance is placed for a reversal of the judgment. In fact, it would seem, from the number of the grounds set out in the motions for a new trial and in
The error complained of in bill of exceptions No. 1 is to this effect: The district attorney asked leave of the court to amend the caption of the indictment, in that portion which purports to set out the time of the meeting of the court, where the pleader, in stating the time, had written the date as in the year of our Lord one thousand eighteen hundred and seventy-six, and the court permitted the clause to be changed and amended so as to read, in the year of our Lord one thousand eight hundred and seventy-six. The judge, in giving a bill of exceptions to the ruling, appends thereto : “ The court caused the minutes of the court to be examined, and from these it was found that an indictment was. presented in this court by the grand jury of this county, charging John Sharp with murder, and that the date of this entry in the minutes of the court was the same as that of the file-mark of the indictment proposed to be amended.”
Older members of the bar will remember the practice
What is form and what is substance is defined by the Code ; and also what are the only exceptions, either to the form or the substance, of which one indicted can avail himself preliminary to the trial. The exceptions to the substance of an indictment are set out in art. 487; exceptions to the form of an indictment are stated in art. 488 ; and these exceptions may be cured by amendment, as has been often decided by the Supreme Court, and which has been followed by this court. Bosshard v. The State, 25
The case of Drummond v. The State, 4 Texas Ct. App. 150, cited by counsel for the State, is not in point. There the amendment had reference to the date upon which the offence was charged to have been committed, and it was held to be matter of substance, and not amendable; and correctly so, for the good reason that it was the work of the grand jury in describing the offence, and not, as in the present case, the work of the pleader merely, in putting in form the presentation of the case as found by the grand jury.
The matters complained of in bill of exceptions No. 2 are the following: —
1. On the list furnished the defendant, from which the petit jury was to be selected, was found the name of “ Eck Conway,” who, when presented and sworn, said his name was C. A. Conway, but that he was nicknamed Dch Conway. The defendant claimed he ought not to be required to pass upon the juror, on the ground that his name was not on either the special venire or on the list served upon him. The objection was overruled, and the defendant excepted.
2. The defendant objected to pass upon the name of another juror because he had served one week during the last preceding term of the court.
3. He objected to pass upon the name of another juror
The judge, before signing the bill of exceptions, made the following explanation: “ The jurors Conway, Winink, and Stark (those jurors named in the bill of exceptions) were not on the special venire, but were jurors summoned by the sheriff under order of the court, after the special venire had been exhausted. The last District Court of this county was held more than six months before the present court commenced, and adjourned more than six months before the present court was begun ; and, further, when the jury was selected in this cause, the defendant’s challenges were not exhausted.” To raise an objection is one thing; to verify the objection by the record is quite another matter. Counsel for an appellant, who seeks an appeal to reverse a judgment, ought to be able to point his finger to the page of the transcript where the error complained of was committed; and not only so, but be able to point out how or in what manner the law has been violated, or the rights of the appellant to a fair and impartial trial have been prejudiced by the action complained of, or not encumber the record with them.
Now, whilst the defendant in a capital felony is entitled to a special venire, and to be served with a list of the names of the persons summoned on the special venire facias, there is no law which requires that he shall be served with a list of talesmen summoned to complete the panel after the special venire shall have been exhausted; nor ought he be heard to complain that he was forced to a peremptory challenge, so long as he has an opportunity to protect himself, by peremptory challenge, from an objectionable juror. By the statement of the true condition of things in the judge’s qualification to the bill of exceptions, their frivolity is made
As to the matters complained of in bill of exceptions No. 3, they relate, in the main, to rulings upon the evidence, and generally upon what appear to be minor and unimportant features of the testimony. When the matters complained of are considered in the light of the whole testimony, as set out in the statement of facts, and with which the testimony objected to appears to be in connection, and this taken in connection also with the charge of the court on the subject, we fail to discover any material error committed, or such as called for the granting of a new trial, especially as elucidated by the explanation made by the judge in giving a bill of exceptions to his rulings.
Bill of exceptions No. 4 recites that the court would not allow the defendant to prove the state of feeling between the family of a State’s witness and the family of one J. G. Collison ; and that the defence offered to ask of a witness for defendant, after the witness had spoken of meeting certain persons at a given time and place, whether these men made any statements, by way of confession, as to the killing of Cone; to which the witness answered, they did.. Defendant then asked the witness who, they told him, did the killing; to which the State objected, and the objection was sustained by the court. We are unable to see the-materiality or relevancy of the first question, or that the-answer would have been either material or relevant. As to-the second question, and the answer anticipated, it was probably intended to show some facts tending to show that these four men, or one or more of them, made some confession or gave some intimation that they, or some one of them, or somebody else other than the defendant Sharp, had perpetrated the deed. It was not competent for the defendant to make such proof for such a purpose. Boothe v. The State, 4 Texas Ct. App. 202; Walker v. The State, decided at the present term, ante, p. 576.
There are, however, other grounds set out in the motion. One is, that the court erred in overruling the defendant’s motion for a continuance; another is, that the court erred in refusing to set aside the special venire. These matters will only be inquired into, on appeal, on proper bills of exception; and, finding none such, we are not permitted, under settled rules of practice, to consider them in deter
The third, fourth, and fifth grounds of the motion have been disposed of in considering bill of exceptions No. 1. The sixth and seventh grounds of the motion have been disposed of in connection with the bill of exceptions No. 2. The remaining grounds of the motion for a new trial are the eighth, having reference to the charge, and the ninth, that the verdict of the jury is contrary to the law and the evidence.
The objections to the charge are: that the court erred in defining implied malice, and in directing the jury to convict the defendant; and that “ the fourth division of the charge is upon the weight of evidence.” There is no bill of exceptions to the charge as given, nor were any additional instructions asked, so far as the record discloses. No complaint is made as to the definition of express malice, or the charge on murder in the first degree. The definition of implied malice, as found in the second paragraph of the charge, is as follows: “ Implied malice is that which the law infers from, or imputes to, certain acts. Thus, the law implies malice to [from] the killing of a human being, unless the circumstances make it evident that the killing was-either justifiable, or, if not justifiable, was so mitigated as to reduce the offence below murder of either the first degree or second degree.” The charge on implied malice and on express malice is preceded by a lengthy definition of the general term, and applies to both kinds of malice, except as applied to each by way of distinguishing between the two ; and, when taken in connection with this general definition, is an accurate definition of the term, “implied
The objections to the fourth paragraph of the charge, that it directs the jury to convict the defendant, or that it is upon the weight of the evidence, are not sustained by the record. The jury were charged as follows: “If the jury have a reasonable doubt whether the defendant is guilty of murder of either the first degree or the second degree, they should acquit Mm.” We find no error in the charge; at least, none of wMch the appellant can complain.
Was the verdict of the jury contrary to the law and the evidence ? The record answers the question by a decided negative. The witness Patterson appears to have been the only eye-witness to the homicide. After recounting certain matters which occurred on the day and evening previous to the killing, as to certain persons coming to the house for bread, he says that next morning he (the witness) and Cone (the deceased) were in the field, and four men came into the field. One of them—the man who got the bread the evening before — and “ this man ” (the defendant, whom he had previously pointed out and identified in court} came up in advance of the others, and informed Cone that “ that man ” had a writ for him. Cone gave up his pistol, and said he would surrender; and then the other men came up, dismounted, and, placing their horses between them and Cone, commenced firing upon Cone; when, the witness says, he ran, and looking back, saw Cone fall. The witness was overtaken by the party, and recognized defendant as one of the party, who spoke to witness, and asked him if he (witness) knew him. Witness told him he did; and defendant told him if he would leave the country, and never let Mm see Mm again, he would spare Mm. Witness
This is substantially the testimony of the only witness to the killing, given on his direct examination, as it is found in the statement of facts. This witness was subjected to what appears to have been a rigid cross-examination, — all about the men who came for the bread the evening before the homicide, how they were disguised, how armed, and the kind of animals they were riding, what he had formerly stated concerning the facts, and the like, — apparently with the view of discrediting and breaking down his testimony, and preparing the way for the introduction of other testimony for that purpose; and he was reexamined apparently to give him an opportunity for explanation. Other witnesses testified, and in this respect some of them corroborated and others differed as to some of the facts testified to by the witness Patterson; their testimony involving many matters which to us appear to have been unimportant, irrelevant, and immaterial. Great latitude appears to have been allowed in the examination of the witnesses.
After the judge had instructed the jury as to the presumption of innocence and the reasonable doubt, and told them if they had a reasonable doubt as to the defendant’s guilt they must acquit him, the following appropriate instruction was given as to the respective duties of the judge and the jury, to wit: “ The peculiar province of the court is to expound and define the law of the case to the jury, and it is the duty of the jury to determine the guilt or innocence of the defendant from the law thus expounded to them, and from the evidence. It is the exclusive prerogative of the jury to determine both the credibility of the witnesses and the weight of the evidence; upon these mat
From the above testimony, and under the above instruction, the jury determined the defendant guilty of murder in the first degree ; and under the provisions of the Constitution in force at the time the crime was committed, and under which the punishment was assessed, they exercised the discretion allowed them, and, in lieu of the death penalty, fixed his punishment at confinement in the State penitentiary for the term of his natural life. The judge before whom the witnesses testified, and who had ample opportunity for observing their manner and bearing whilst on the witness-stand, their means of information, the degree of intelligence they each possessed, and how they stood the test of cross-examination, added his indorsement of the State’s witnesses, and, concurring in the verdict, refused to set it aside and award the defendant a new trial. In this we find no such error as would warrant an interference on the part of this court.
In considering the various objections raised to the sufficiency of the indictment, as set out in the motion in arrest of judgment, we fail to discover any defect except the one as to matter of form, already noticed. The only other criticism discoverable upon its face is, that it charges an assault, and the infliction of the injuries of which the deceased died, as having been committed by the defendant, by name, and three other persons who were unknown to the grand jury, and describes the transaction in plain and intelligible language; thus fully apprising the defendant of
We are of opinion that, under the law, when applied to the facts proved, the appellant, if guilty at all, — and of this the jury had to decide,—was guilty as a principal offender; he was present and acting with the party who took the life of Cone, and it was not necessary for the State to prove, or the jury to find, whose gun or pistol fired the fatal shot, or whose hand held the murderous weapon. We are of opinion the appellant has been fairly tried and legally convicted, under a valid indictment, upon competent and legal testimony, applied to the law of the case under a proper, fair-minded charge by the judge, and in which, so far as can be determined by the record, the substantial rights of the appellant were properly guarded.
Finding no material error in the proceedings, the judgment of the District Court is affirmed.
Affirmed.