White v. State , 32 Tex. Crim. 625 ( 1894 )

Appellant was indicted for and convicted of the murder of Bob Ford. The killing occurred in the town of Beaumont. The punishment assessed was life imprisonment.

Application for continuance was made for several witnesses, all of whom appeared at the trial except Becky Cole. By her it was expected to be proved, "that one Pap Smith was in the town of Beaumont when Ford was injured." The diligence was wholly insufficient. The fact that Smith may or may not have been in the town of Beaumont on the night of the homicide is wholly immaterial, unless it was expected to connect him, directly or indirectly, with the homicide. The fact that he was in Beaumont, as stated, did not tend to exculpate defendant or inculpate Smith. Again, the statement that he was in the town of Beaumont on the particular night in question is too general and vague. "General statements will not suffice; nor will mere inferences or indefinite allegations. The facts expected to be proved should be stated definitely." Miller v. The State,31 Tex. Crim. 609. If Smith was in the town of Beaumont, and that fact was known, he was certainly at some particular place. The witness knew something of his movements if she was cognizant of his presence. The application was properly overruled.

Defendant was indicted under the name of Jim White, whereas the copy of the indictment served upon him recited his name as Jim White. When arraigned, and after pleading to the indictment, he requested that he have two days service of a true certified copy of the indictment" as returned into court, the reason assigned being a variance in the name, as above stated. This came too late after his arraignment and plea; and besides, the variance was immaterial. Johnson v. The State, 4 Texas Cr. App., 268.

A bill of exceptions recites, that defendant "offered to prove by Walter Delaney, the little son of William Delaney, whether he and his father, William Delaney, had ever talked with one another about threats testified to have been made in the ice house by Jim White to William Delaney, in his, Walter Delaney's, presence, about one week before Bob Ford was hurt." Objections interposed by the State were sustained. This bill is too indefinite to be considered. It should have stated the evidence expected to be elicited from the witness, as well as the object or purpose of seeking it. Davis v. The State, 14 Texas Cr. App., 645; May v. The State, 25 Texas Cr. App., 114; Walker v. The State, 19 Texas Cr. App., 176; Counts v. The State, 19 Texas Cr. App., 450; Willson's Crim. Stats., secs. 2368, 2516.

At about a week before the homicide, the witness Bender said to defendant, "I heard Bob Ford hallooing at you," and defendant replied, "Yes, I will fix him yet." This evidence was objected to because immaterial and irrelevant. The objections were not well taken. The remark or reply of defendant was relevant to the questions of malice and motive.

Objections were sustained to certain questions asked defendant by his counsel while testifying in his own hehalf, because the questions were leading. Whether this was or was not error is not necessary for us to consider, because, when put in another form, the questions were answered and the matter of inquiry fully testified to by the witness. There was no error in this matter.

The contention that the court erred in failing to instruct the jury in regard to the law applicable to circumstantial evidence is without merit. The proof of the confessions of defendant relieved the court of the duty of so charging. Willson's Crim. Stats., sec. 2342; Wampler v. The State, 28 Texas Cr. App., 352.

The exceptions reserved to isolated and detached excerpts from the court's charge are without merit, and any discussion of them we deem wholly unnecessary. Upon the trial the State adduced evidence of defendant's confessions, made upon two different occasions. The defendant introduced proof to the effect that he was intoxicated when the second confession was made; and he himself stated, if he made such confession, he had no recollection of it. His memory was rather distinct as to the circumstances surrounding him up to, as well as immediately after, said confessions were shown to have been made. Upon this state of case, the court refused to give in charge to the jury the following instruction, requested by defendant's counsel, to-wit:

"You are instructed, that before you can convict the defendant on his confession (or oral statement), if any was made by him, you must be satisfied from the evidence that he was in such a mental condition or state of mind at the time of making such confession, if any, as to realize and understand the import or nature of such statement, if any; and in case of a reasonable doubt thereof, arising out of the evidence, you should not consider the same in determining as to his guilt."

The court's refusal to give this instruction was not error. Intoxication of the accused at the time he may have made the confession would be a matter for the jury to consider in weighing the testimony, and would tend to affect the weight of such confession, but would not exclude such confession from being put in evidence. Commonwealth v. Horne, 9 Gray, 110. "The degree of intoxication which leaves one capable of making a narration of past events, or of stating his own participation in a crime, is not sufficient to exclude the inculpatory statement from the consideration of the jury." The State v. Greer, 28 Minn. 426; Commonwealth v. Horne, 9 Gray, 110; Rex v. Derrington, 2 Car. P., 418; Rex v. Thomas, 7 Car. P., 345; King v. The State, 40 Ala. 314; Gates v. The People, 14 Ill. 433; The People v. Barker, 60 Mich. 277; The State v. Staley, 14 Minn. 105; The State v. Jones, 54 Mo., 478; The State v. Phelps, 74 Mo., 128; The State v. Fredericks, 85 Mo., 145; The State v. Rush, 95 Mo., 199; The State v. Mitchell, 61 N.C. 447; Heldt v. The State, 20 Neb., 492; Commonwealth v. Hanlon, 3 Brewst., 461; 3 Rice on Ev. (Crim.), sec. 315; Whart. Crim. Law, secs. 676, 635.

As presented to us, the record discloses no sufficient reason for reversing the judgment; wherefore it is affirmed.

Affirmed.

Judges all present and concurring.