Taylor v. State , 44 Tex. Crim. 547 ( 1903 )

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. Appellant strenuously insists that in the original opinion the court erred in holding that the remark of appellant made to Mary Taylor, at her house, on Thursday night preceding the homicide on Monday night, to the effect, "I am going to do some devilment and get my name in the paper," was admissible, his contention being that the remark was of a general character, was not a threat against deceased, and did not embrace him. This remark was testified to both by Mary Taylor and Della Anderson. We discussed this question at length in the original opinion, as if the bill of exceptions were full, and showed that the remark in question was isolated, and not connected with any other remark so as to have a bearing on, and point to, deceased. The grounds of objection urged in the bill are not equivalent to a certificate that the fact existed, but merely a certificate of the judge that those grounds of objection were urged. The bill of exceptions should have been so full as to have shown all the testimony bearing on the question, or the judge should have certified that the evidence in question was not otherwise connected with, or pointed to, deceased. However, the judge in certifying the bills — especially the sixth — refers to the statement of facts. While in the original opinion we refer to the statements in response to the judge's certificate, we do not recite all the facts that tended to show deceased, and no other person, was meant by the remark of appellant made on Thursday night. In addition to what was said in the original opinion, we refer to the testimony of Sarah Taylor, who states that on that same Thursday night, George Taylor said, "Abe thinks he can run it over me, but I am going to kill him and leave town." Now, taking this remark in connection with what was said in the original opinion, there can be no question that appellant, when he made the remark to the effect that he was going to do some devilment, and get his name in the papers, had reference to deceased.

The other ground urged by appellant in his motion for new trial is to the effect that the court failed to give his special requested instruction on the burden of proof. There was no occasion to give a charge on the burden of proof. The court gave a full charge on circumstantial evidence, and a charge on presumption of innocence and reasonable doubt. We think this was sufficient.

The motion for rehearing is overruled.

Motion overruled.