Stewart v. State , 4 Tex. Ct. App. 519 ( 1878 )

Ector, P. J.

Exceptions were taken in the court below

to the indictment, because, as alleged, the same is too vague and indefinite as to the offense attempted to be charged, and because it fails to charge any felonious or malicious intent on the part of the defendant to commit the offense of an assault with intent to murder. ” The court properly overruled the motion to quash the indictment. Nash v. The State, 2 Texas Ct. App. 363, and cases there cited.

The charge of the court, taken as a whole, we believe, submitted the law of the case to the jury . The instruction of the court, in the second paragraph of the charge, upon the subject of reasonable doubt, did not restrict it to a simple assault, as is urged by the counsel for defendant. The language used by the court in the second paragraph of the charge will not admit of that construction; on the contrary, the jury are told that “in all criminal cases the defendant is presumed to be innocent, and, unless the jury are satisfied from the evidence of the guilt of the defendant, beyond a reasonable doubt, they should acquit.”

Whenever it appears, upon a trial for an assault with intent to murder, that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to have done the same with that intent. We believe that the court, in the charge to the jury, correctly defined murder, and properly instructed them as to the facts and circumstances under which a homicide would be murder.

The jury were then told what would reduce a voluntary homicide to manslaughter, and what would not. Farrar v. The State, 42 Texas, 263; Brown v. The State, decided by this court at its present term, ante, p. 275.

The defense relied on is, that Wallace provoked the difficulty ; that he used vulgar and insulting words towards the wife of the defendant, immediately before he was shot by the defendant; and that such language reduced the offense, if any was committed by defendant, below the grade of an assault with intent to murder; that if the defendant had shot and killed Wallace, under the circumstances he would, at most, have been guilty of manslaughter.

The court instructed the jury that “insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide will reduce a voluntary homicide to manslaughter.” It is insisted that this portion of the charge was too general; that “ the word towards has two meanings — a physical and a moral one — and in an instance of this kind the two meanings may combine or stand separate. It may imply a direct address to the female relation present, or imply ‘reference to’ or ‘ concerning of’ a female relation not present. In this case she was not present. Then connect with the phrase ‘ insulting words ’ the phrase 6 or conduct; ’ the physical meaning, or the meaning carrying the implication that the female must be present, is injected with great force into the charge of the court, there being no insulting conduct toward the female relation in this case, as she was absent..” The objection, we think, is too hypercritical. This part of the charge of the court is in the exact language of subdivision 4 of article 599 of the Code (Pasc. Dig., art. 2254), and if the jury believed from the evidence that any insulting words or conduct were used by Wallace towards the wife of the defendant, at the time he shot Wallace, we think they were sufficiently instructed as to the law on this point to render an intelligent verdict. If the counsel for the defendant believed that this portion of the charge did not fully and explicitly embody the law, or that it was liable to misconstruction by the jury, and needed further explanation from the court, they should have asked an additional charge. The record shows that no exception was taken by the defendant to the charge of the court, and that no additional instructions were asked by either party.

The statement of facts shows a conflict of evidence. If the witnesses of the State are to be believed — and they are more numerous than those on the part of the defense — Wallace, the person assaulted, used no insulting words or conduct towards any female relation of the defendant, or towards any female under his protection ; and was entirely unarmed when he was shot, and then making no hostile demonstration towards the defendant. Sufficient evidence was introduced by the State to warrant the jury in finding the defendant guilty of an assault with intent to murder.

There was a conflict in some material points between the testimony given by the State’s witnesses and that produced on the part of the defendant. The jury had the witnesses before them, and were the best judges of their credibility. If there was a discrepancy or conflict in their testimony, it was in the province of the jury to reconcile it, if possible; and if they could not do this, to give credence to the witnesses who, in their opinion, were best entitled to it. They have chosen to disregard the statements of defendant’s witnesses, and give credit to the evidence offered by the State. The judge who tried the case in the lower court had an opportunity of seeing the manner of the witnesses at the time of giving their testimony, and of hearing them testify. He did not see proper to set aside the verdict.

It is contended by the defendant that it appears from the record that the verdict in this case was returned into open court by the grand jury. We make the following extract from the record-entry of the trial, plea, and verdict in this case:

“Whereupon came a jury of twelve good and lawful men of Travis County, consisting of J. E. Raney and eleven others, who, being duly elected, tried, impaneled, and sworn according to law, heard the indictment read, the defendant’s plea of not guilty, the evidence, argument of counsel, and the charge of the court, and retired to consider of their' verdict; and thereupon, after due deliberation, said grand jury returned into open court the following verdict, to wit: ‘ We, the jury, find the defendant guilty of an assault with the intent to murder, and assess his punishment at five years in the penitentiary. J. E. Raney, foreman.’ ”

Evidently the words “grand jury,” as in the above extract, are a clerical error, and we do not think it vitiates the verdict and judgment herein. At the same time, there is no sufficient excuse for such errors in any transcript. The mistake was probably made by the clerk, and overlooked by the presiding judge and the county attorney when the minutes of the court were read, or was made by the clerk in preparing the transcript for this court. We think it is obvious, from the recitals in the entire record bearing on this point, that the verdict was found and returned by the. petit jury, who were duly elected, tried, impaneled, and sworn in the case.

We see no reason why this court should disturb the judgment of the court below, and it is, therefore, affirmed.

Affirmed.