Jones v. State , 34 Tex. Crim. 490 ( 1895 )

This case was tried at a former day of this term and the judgment reversed, and it now comes before us on a motion filed by the Attorney-General for a rehearing. My brethren have agreed to adhere to the opinion and judgment of reversal previously rendered in this case, but on a more thorough examination of the questions involved, I dissent from the views heretofore expressed in the opinion of the court.

The reversal of this case was predicated upon the idea that it was a case of circumstantial evidence, and that the court in its charge upon this subject committed a material error by omitting from its charge an instruction, "that the circumstances must be such as to exclude every other reasonable hypothesis except that of the defendant's guilt." The charge as given was otherwise full and complete, in accordance with all the authorities on the subject. If it be conceded, however, that the charge was not full enough in a case involving purely circumstantial evidence, the question still presents itself, was this a case calling for a charge on circumstantial evidence? The record shows in this case that the killing of deceased was done by one McGruder. Clarence Humphreys, a son of deceased, testified, in effect, that his father went out towards the barn, and McGruder and defendant, Jones, went out after him. He saw Jones and McGruder go to where his father was. "When I last saw them they were going east, and were about seventy-five feet east of the barn. I then went back into the bedroom. In about five minutes I heard three shots. I ran out on the south porch of the house; saw McGruder shooting with a pistol, and saw Jones, who seemed to be a little southwest of McGruder, but did not see pa. Heard one shot before I went out on the porch, and saw two shots after I went out. Didn't see any more after I went into the bedroom from the porch before the shooting began." Saw his father lying there afterwards near where the shooting was. Several other witnesses saw the shooting.

The defendant Jones testified, on his own behalf, and testified as to the facts attending the killing of deceased (Humphreys) by McGruder, and testified also as to what he did, so that in our view of the case, the fact of killing, which is the main fact in the case, is proven by positive testimony of eye-witnesses.

It is true that a great deal of testimony tending to show a conspiracy on the part of Jones and McGruder before the fact of killing was elicited, and this was of a purely circumstantial character, adduced for the purpose of characterizing his presence at the scene of the homicide, and what he did or did not do there. In the case of The Commonwealth v. Webster, 5 Cush. 310, the court, in speaking of that case, say: "This case is to be proved, if proved at all, by circumstantial evidence, because it is not suggested that any direct evidence can be given, or that any witness can be called to give direct testimony upon the main facts of the killing. * * * The distinction, then, between direct and circumstantial evidence is this: Direct or positive evidence is when a witness can be called to testify to the precise fact which is the subject of the issue on trial; that is, in a case of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved."

In this case it was not proven that the act of killing was done directly by the defendant Jones, but that the same was caused by his alleged coconspirator McGruder, and the court gave fully in charge, as it was his duty to do, the doctrine of principals; so that if the jury should believe from the evidence, positive in its terms, that McGruder did the killing, and that Jones was present, and, knowing the unlawful intent of said McGruder, aided him by his acts, or encouraged him by words and gestures in said killing, that they would convict him. His presence, as stated before, was proven by positive testimony, and while the intent and purpose of being there, to give color and character to his presence, and what he did or did not do there, is to be gathered by circumstantial evidence, yet, as we understand it, when the act is established by positive evidence and the intent is to be inferred from circumstances, it is not necessary in such case to give a charge upon circumstantial evidence. 2 Thomp. on Trials, sec. 2505; The State v. Maxwell, 2 Iowa 208.

Believing as I do that there was no occasion arising from the facts of this case to authorize the court to charge upon circumstantial evidence, and conceding that the charge given was erroneous, as not full enough, yet it in nowise prejudiced the defendant, but was rather in his favor, I can not concur in the views expressed by the majority of the court in this case, but dissent from same.