Adams v. State

• Decision Date: 18 December 1895
• Citation: 33 S.W. 354
• Parties: ADAMS v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 354

ADAMS v. STATE.

Court of Criminal Appeals of Texas.

December 18, 1895.

Appeal from district court, Greer county; G. A. Brown, Judge.

J. D. Adams was convicted of murder, and appeals. Affirmed.

Farrar, Kincaid & Williams, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of murder in the second degree, and given 99 years in the penitentiary. Appellant filed a plea to the jurisdiction of the court in effect alleging that the homicide occurred in Greer county, and that the courts of this state have no jurisdiction over offenses committed therein. Greer county has been recognized as an integral part of the state of Texas by general legislation of this state, and this court takes judicial cognizance that it is a part of this state, and the plea to the jurisdiction was properly overruled on this ground. Moreover, appellant's bill of exceptions does not show what facts it proposed to prove in order to establish that Greer county was not a part of the state of Texas, and, in the absence of such facts offered to be proved, the court did not err in overruling the motion. The transcript contains 160 pages, the evidence upon the motion for a change of venue covering 12 pages thereof. The motion being overruled, appellant excepted, reserving his bill of exceptions. The bill of exceptions does not contain the evidence in support of and against the motion to change the venue. Article 584 of the Code of Criminal Procedure provides: "The order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in the bill of exceptions, prepared, signed, approved and filed at the term of the court at which such order was made." This law requires the evidence upon which the order refusing to change the venue of a cause is based to be inserted in a bill of exceptions, properly approved, and filed at the term of the court at which such order was made. The facts upon which the order refusing the motion to change the venue were based are not in a bill of exceptions, and therefore we cannot consider them. Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Smith v. State, 31 Tex. Cr. R. 14, 19 S. W. 252; Lacy v. State, 30 Tex. App. 119, 16 S. W. 761; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925.

There is nothing in appellant's motion to continue this cause on the grounds alleged by him, of excitement and prejudice then existing against him in Greer county. Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Id., 31 Tex. Cr. R. 609, 21 S. W. 925.

There are a great many special instructions requested by appellant and rejected by the court. We have considered them all carefully in connection with the charge given by the court. We have not time to discuss these requested instructions, but we believe the charge of the court, as given, applied the law to every phase of the case presented by the evidence. One requested charge, however, will be noticed. Counsel for appellant seem to think that the following theory of the case was presented by some testimony; that is, that appellant may have been justified in the first shot, and, as the deceased abandoned the difficulty, and was on the retreat, and appellant and his accomplice, Horatio Thomas, shot him afterwards, when neither of them was in any danger, that, therefore, manslaughter was presented. We do not so view the case. That the first shot was a fatal shot is positively shown, and nowhere denied. The court charged fully and liberally the law of self-defense, applying it directly to what was done by the deceased at the time of the first shot, so that, if the jury should believe certain evidence, they should acquit the defendant of all guilt in the first shot. This is not a case in which the appellant may have been justified in the first shot, but culpable in the subsequent shots. It is not a case in which he shot at and missed the deceased, or a case in which he shot and inflicted a wound which was not mortal, and the deceased abandoned the difficulty, and defendant repeated the shots when he was in no danger, but a case in which a mortal wound was inflicted by the first shot. Now, the court instructs the jury, if they believe this shot was fired under certain circumstances, to acquit the defendant. This is all to which he was entitled, if in fact he was entitled to any charge on self-defense. We are of the opinion, however, that there was neither self-defense nor manslaughter in this case. There is no testimony remotely presenting self-defense or manslaughter, but a case in which appellant coolly, deliberately, and avowedly sought the deceased with the intention expressed of killing him if he questioned his conduct in regard to a certain yearling. Appellant was armed; the deceased was not. The deceased did question his conduct in regard to the yearling; had a right to question it. Appellant was armed, and ready to execute his threat; and, whether the deceased threw his hand to his pocket or not, the proof is conclusive that appellant was there for the purpose of killing him, and did kill him. Under this state of case the court was not required to charge on self-defense, and hence was not required to charge upon manslaughter resulting from the conduct of the deceased in putting his hand behind him, because, whether the conduct of appellant made it necessary for the deceased to resort to arms, yet the appellant's intention was to kill him if he mentioned the subject pertaining to the yearling. By reference to the record it will be...