Green v. State , 49 Tex. Crim. 645 ( 1906 )

This case was affirmed at the Austin Term, and now comes before us on motion for rehearing. There are but two questions which we desire to consider, and both relate to the charge of the court. Both of these matters were considered in the original opinion, but appellant's motion for rehearing again calls our attention to these questions and supports his view not only with authorities but in an able discussion.

It is urged that the charge of the court is wrong on murder in the second degree, in which the jury were told to find appellant guilty of murder in the second degree, if the evidence fails to establish express malice on the part of the defendant beyond a reasonable doubt, and if the evidence further fails to establish that the homicide was manslaughter or self-defense. The contention being here that this charge shifted the burden on appellant to establish that it was manslaughter or self-defense, before he could be acquitted of murder in the second degree. Abstractly speaking, as was held in McGrath v. State,35 Tex. Crim. 413, murder of the second degree, that is upon implied malice, is bounded on the one side by murder of the first degree, and on the other by manslaughter. So that, if the facts do not show on the one hand murder upon express malice and do not show on the other hand circumstances that mitigate, excuse or justify, and it is an unlawful killing upon malice, it is implied malice. The charge in that case was unlike the charge in this case. Here, more than once the court tells the jury that if the evidence fails to show or fails to establish manslaughter, to find appellant guilty of murder in the second degree. Clearly, as it now occurs to us, putting the burden on appellant to show or establish manslaughter, before they would be authorized to acquit him of the higher grade of felonious homicide, being second degree, and convict him of manslaughter. This exact question was before this court in Casey v. State, 14 Texas Ct. Rep., 818. There it was held that such a charge was reversible error. In that case as in this case, in subsequent portion of the charge, the court instructed the jury, if they had a reasonable doubt as between manslaughter and murder in the second degree, to give appellant the benefit of the doubt and convict him only of manslaughter. Such a charge instead of clarifying the situation would rather tend to confuse the jury. In the first place they were told in effect that the burden was on appellant to show that he was only guilty of manslaughter before he could be acquitted of murder in the second degree. The subsequent instruction to the jury, if they had a doubt as between manslaughter and murder in the second degree, to give appellant the benefit of the doubt, would not relieve them of their duty under the former instruction, to find appellant guilty of murder in the second degree, unless, in their opinion the evidence failed to establish manslaughter. On a reconsideration of the question raised under said charge, we are not prepared to say that the same was not injurious to appellant. He was found guilty of murder in the second degree, and his punishment assessed at thirty-five years in the penitentiary, and the court had no right to place the burden on him to establish his guilt of manslaughter before he could be acquitted of murder in the second degree, or to leave the jury in a confused state as to that question.

The other proposition involves the charge of the court in limiting the testimony of certain witnesses. The contention here is that the court, in said charge assumed that appellant's witnesses made certain statements to the State's witnesses and did not leave the jury free to find whether appellant's said witnesses made said statements or not. The charge as to said witnesses is in this wise: "I charge you that the evidence of R.A. Meek, concerning certain statements made to him by A.L. Green, etc., is not original evidence in his case. But if you believe the evidence of said Meek contradicts or tends to contradict the evidence of A.L. Green, who has testified herein before you, then you are charged that in passing on the credibility of said A.L. Green and in weighing his evidence, you may consider the evidence of said R.A. Meek, but you can consider it for no other purpose." And the same character of charge is given in reference to the testimony contradicting John Green and Mrs. Ida Green, by certain State's witnesses. Now, some of this testimony, though of an impeaching character, was liable to be appropriated by the jury as original testimony, and the court should have plainly told the jury, that if they believed that defendant's witnesses, named, had made certain statements to the witnesses, named, different from their testimony delivered on the stand, and they further believed as to such statements the State's witnesses had testified to facts contradicting or tending to contradict them as to such matters, that they could consider the same only for the purpose of weighing the testimony of such witnesses, or in passing on the credit, if any, which they should accord to said witnesses and for no other purpose. A more critical inspection of the charge as given seems to leave the same liable to the criticism indulged by appellant. That is, that the jury were only permitted to pass upon the question as to whether or not the State's witnesses testified to facts that contradicted the testimony of appellant's witnesses; that the court assumed in its charge that the statements were made by appellant's witnesses and only submitted to the jury the question as to whether or not the State's witnesses were in conflict with appellant's witnesses.

For the errors here pointed out, the motion for rehearing is granted, and the judgment is reversed and the cause remanded.

Rehearing granted; reversed and remanded.

Brooks, Judge, absent.