Hill v. State

White, P. J.

As viewed in the light of the evidence before us the facts connected with the homicide charged are substantially these, viz.: Mack, the deceased, a boy of some seven years of age, was the step-grandson of appellant. His parents were dead, and for some time prior to his death he had been residing with his grandparents. He was extremely delicate, having suffered from chronic diarrhoea, ulcerated sore throat, and swollen limbs. Experts who testified to a diagnosis of the case at the trial thought his ailments might have been caused by scrofula or hereditary syphilis, and, taking the symptoms as testified by the other witnesses as criteria for their opinion, concluded that his condition was critical, and death from these diseases imminent and likely to ensue at any time. The boy, however, was able to walk about and go errands.

Emeline Cole, the principal witness for the prosecution, testified: “On Tuesday, the 17th of August, 1881, before the child died the next Thursday, I was passing her (Sally Hill’s) house about 11 o’clock, A. M., and called to her to come with me to see a house close by, which I wanted to rent from Mr. Taylor. As aunt Sally came out of the yard she told Mack not to meddle with or take any of the preserves she had been making. When we came back a short time thereafter, the child had his pockets filled with the preserves, and his hands and mouth and clothing were besmeared with them. Aunt Sally then asked him why he had acted so, and he denied it. She then got some switches froini a peach tree in the yard and whipped the child with them, but I cannot say how long she whipped him. She then caught the child by the throat and neck with both hands and choked him, raised him up and threw him down, and when she let him loose he fell, striking his head against a root. She shook him as she held him, with both hands. I had told her some days before she whipped the child that he was sick, and she ought to give him some mullen tea. I was about six feet from the root the child’s head struck. He is dead. He made two attempts to get up before he succeeded. Defendant stated at the time she hoped the child would die, and hoped that it would be dead next morning. Witness saw the child after it was dead and before; it was mightily bruised; could not lay your finger down for stripes. This happened the day before the child died.”

Another witness for the State testified that on Wednesday evening, the day of the whipping and choking, Hack was at her house at dusk.

For the defense, amongst other matters, it was proven by one Bently that on the Tuesday before the child died he and another party found Hack at the trestle on the railroad. He says, “we found Hack lying there crying. We talked to him and he said he had fallen on the trestles, that he had tried to jump from one tie to the other, and had fallen. His mouth was bleeding and brother HitchelL wiped it off. Hack lay in the track when we came up. He seemed very hot, and we wiped him and carried him into the shade of a tree near by, and got him some water to drink from a house close by.”

Dr. Eason, who was present when the coroner’s inquest was held upon the dead body, testified: “ I made a partial examination of the body. I found it badly bruised on the chest and belly, and bruises on the head and pretty severely all over his body. I found his throat internally bruised, as shown by the color of the blood and flesh, and it is my opinion that the death of the boy was caused by the effect of these bruises. The bruises could not have been made by his own weight or a fall. Some of the bruises were a little older than the others. I found the penis of the boy covered with abrasions, showing signs of inflammation. I found marks of violence on the body of the boy. He seemed to be about seven years old. From the marks on the body I took it they were signs of his having been severely whipped. The blood in his neck did not have its natural color. Choking might have caused it. From all of the signs of violence on the dead body, I am clearly of the opinion that they produced the death of the boy.”

The theory of the defense was that death and the bruised appearance of the body were superinduced by disease, or the complication of diseases, from which he was suffering, and his fall upon the railroad trestles. There was also evidence adduced showing uniform kindness on the part of appellant towards the deceased whilst he lived with her.

The motion for a new trial was mainly based upon supposed errors of omission and commission in the charge of the court. Of commission, the errors complained of were as to implied malice and circumstantial evidence. Neither of these grounds are well taken. When the fact of unlawful killing is proved, and no evidence tends to show express malice on the one hand or any justification, excuse or mitigation on the other, the law implies malice and the offense is murder in the second degree. This doctrine is now well settled in this State. Harris v. State, 8 Texas Ct. App. 91. Upon circumstantial evidence the charge is fully supported by the approved authorities. Barnes v. State, 41 Texas, 342; Black v. State, 1 Texas Ct. App. 391; Hunt v. State, 7 Texas Ct. App. 213.

Of omission, the errors indicated are the failure to give the period of punishment of murder of the second degree, failure to charge manslaughter, and the failure to charge certain statutory provisions applicable to the state of facts made by the evidence. As to the punishment of murder in the second degree, the charge reads: “If you find the defendant guilty of murder of the second degree, you will so say by your verdict and assess her punishment at imprisonment in the penitentiary for any period of time in your discretion not less than five. ” The word £ ‘ years, " which should have followed the last word “five,” is omitted. This omission, however, could not possibly have confused or misled the jury. The word years would naturahy and irresistibly supply itself from the context.

Nor did the court err in declining to charge the law of manslaughter. “Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified or excused by law.” Penal Code, art. 593. There can be no manslaughter unless predicable upon “ adequate cause," which is the essential element in determining that crime. McKinney v. State, 8 Texas Ct. App. 627. In the case before us we look in vain for the slightest tittle of evidence going to establish any semblance of adequate cause.

In our opinion the main question and the most serious one suggested by the statement of facts was whether or not the appellant intended to kill deceased, judging her act by the means used and the manner of doing it. Certain statutory rules have been prescribed as aids to the solution of such questions. It is provided that “theinstrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears.” Penal Code, art. 612.

“Art. 613. If any injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder according to facts of the case.”

“Art. 614. Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide unless it appears that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.” See also Dones v. State, 8 Texas Ct. App. 112.

How, whilst the otherwise admirable charge of the court submitted the issues arising under the provisions of articles 612, 613 and 615, which apply to cases where the intention evidently appears, 8r where it is evidenced by the cruelty of the manner in which the injury was inflicted, it did not submit the alternative proposition presented in article 614, supra, as to the law where there was no intention to kill and the homicide was divested of the elements of an evil and cruel disposition. From a careful investigation of all the facts as they are stated in the record, we are of opinion that defendant was entitled to have this view of the law submitted to the jury in a plain, pointed and affirmative manner. If she was not actuated by an intention to kill, or by an evil or cruel disposition, then the killing could not be murder, and her offense might have been reduced to any grade of assault and battery.

For this error of omission in the charge, the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.