Atkinson v. State
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 522 |
| Parties | AMOS ATKINSON v. THE STATE. |
| Court | Texas Supreme Court |
A charge of the court, even where it is constructed abstractly, upon general principles of law, may be good cause for reversal in one case and not in another, accordingly as it is or is not calculated to mislead upon application to the facts of the case.
The words “premeditated and deliberate” prefixed by the statute of 1848 to homicide which should constitute murder in the first degree, imply that the killing is designed before the act, and that such decision is not the sudden, rash conception of an enraged mind, but that the mind is sufficiently cool and self-possessed to consider of and contemplate the nature of the act then about to be done.
If the jury were fully satisfied, under the penal law of 1848, that the killing was designed before the act, and that such design was not the sudden, rash conception of an enraged mind, but that the mind was sufficiently cool and self-possessed to consider of and contemplate the nature of the act then about to be done, and that the design to take life was fully formed and settled upon, before, and continuing with fixed purpose at, the time of the killing, the length of time during which such state of mind has existed, is not material, provocation is immaterial, and conjoined anger and passion are immaterial; it is murder in the first degree.
If, however, on the other hand, the jury should believe this not to be the state of mind of the slayer, at the time of the killing, but that in and from a transport of passion (furor brevis), the intention to kill was formed and executed, although the provocation producing such state of mind, was not sufficient in law to extenuate the killing to manslaughter, it would be only murder in the second degree, under the penal law of 1848. 25 Tex. 33; 25 Tex. S. 395.
See this case for what is said respecting the cases of Jordan v. The State, 10 Tex. 492, and Jones v. The State, 13 Id. 186.
Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.
Indictment for the murder of Thomas Harrison, in December, 1855, tried at the spring term, 1856. The evidence is stated in the opinion. The court gave all the instructions asked by either party, except the following clause, which was struck out of the seventh instruction asked by the prisoner's counsel: “It is safer to err in acquitting than in punishing; on the part of mercy, than on the part of justice.” The only part of the instructions given in behalf of the state, that had reference to the distinction between murder in the first, and murder in the second degree was as follows: The above is the legal definition of murder in general; our statute, however, divides murder into two classes or degrees, and reads as follows: “That all murder committed by poison, starving, torture or other premeditated and deliberate killing, or committed in the perpetration, or in the attempt at the perpetration of arson, rape, robbery or burglary, is murder in the first degree; and all murder not of the first degree is of the second degree.”
If a murder be committed by poison, starving or torture, it is murder in the first degree, without further proof of malice, or that the death of the party was the object sought by the will, deliberation and premeditation of the party killing. But the words “other premeditated and deliberate killing” need some explanation. A killing showing such premeditation and deliberation, is equally murder in the first degree; but proof is necessary to show that such killing was the ultimate result which the will, deliberation and premeditation of the party accused sought. The intention of the accused determines the degree of the offense. If the homicide is premeditated; if there is a specific intention to take life, and life is actually taken, it is murder in the first degree; if there is not a specific intention to take life, it is murder in the second degree.
If a mortal blow is malicious and death ensue, the perpetrator is guilty of murder, whether it be intended to kill or not; he is responsible for the effects of such willful and malicious blow, although he did not intend to kill; but in such case, he is only guilty of murder in the second degree. But if such blow be intended to kill, he is guilty of murder in the first degree. It is not, however, necessary to show a previous intention and premeditation to take life, unconnected with, or preparatory to, the commission of the act producing death. Such premeditation and intention may be gathered from the nature of the act itself. Whenever such act, unexplained, shows deliberation, as when a man without any cause deliberately shoots another, or by any other act producing death without cause. If the design to take life be but the conception of a moment, it is as deliberate, so far as judicial examination is concerned, as if it were the plan of years; or, if the party killing had time to think, and did intend to kill, for a minute, as well as for an hour or a day, it is a deliberate, willful and premeditated killing, constituting murder in the first degree.
The prisoner's counsel asked no instruction in respect to the distinction between murder in the first, and murder in the second degree; after the instructions already given, it would have been futile for him to do so. But the following instruction was asked by him, and given by the court; from which it may be inferred that it was a known fact at the trial, that the instruction from which the above extract is taken, was read from the report of the case referred to: The case of Jordan against the state was one in which there was no quarrel, no hot blood, no sudden assault, and no assault at all; and the doctrine there laid down is not applicable to a case of sudden quarrel, upon sufficient provocation and hot blood, where both parties were to blame, and took part in the transactions at the time or immediately preceding the killing.
The court in giving this instruction, evidently meant that the doctrine of the case referred to, in relation to the distinction between murder in the first and murder in the second degree, had no application to the distinction between murder and manslaughter. This is also evident from the following instruction given at the request of the state: Words of reproach, however grievous, are not provocation sufficient to free the party killing from the guilt of murder; nor are indecent, provoking actions or gestures, expressive of contempt or reproach, without an assault upon the person.
And the following given at the request of the prisoner: Where death ensues in heat of blood, on immediate and sufficient provocation, there having been no previous malice, the offense is manslaughter.
J. E. Shepard, for appellant. Where death ensues in heat of blood, on immediate provocation, there having been no previous malice, the offense is manslaughter. Am. Crim. Law, 374; 5 Black. Com. 191; Am. Law Hom. 35. As to length of time for passion to subside. Am. Crim. Law, 375; Roscoe, Crim. Ev. 675, and 676, and cases there reported at length. Drunkenness may be taken into consideration to lower the grade of crime. Am. Crim. Law, 47.
In defining murder of the first degree, our statute only designates such murder as would be accompanied with the clearest and most express malice, making murder with any other malice of the second degree. Jones & Jones v. The State, 13 Tex. 186. Murder in the first degree, under our statute, was what at common law was murder with express malice; and murder in the second degree was murder with implied malice. Id. 187. For the best definition of murder with express and with implied malice, see Russell, Crimes, 483. (Mr. Shepard then proceeded to argue the facts, and the application of the above propositions.)
Attorney-General, for appellee. (The reporters did not find any brief of the attorney-general with the record in this case.)
The material facts of this case may be comprised in a narrow compass. The prisoner and the deceased were both at the town of Bellville, in the county of Austin, on the 22d day of December, A. D. 1855. They had a violent quarrel during the space of about a quarter of an hour, with but little intermission, which grew out of the prisoner's picking up and walking off with a dollar that was staked between deceased and John C. Cloud, who were playing cards for it. Twice in the time before the killing they had their weapons drawn on each other, the prisoner a pistol and the deceased a hatchet; but both parties, seeming willing not to carry the matter to an extremity, forbore to use them. The deceased was standing on a gallery, leaning against the post on one side of a door, and resting the hatchet against the other post of the door of the gallery, with his arm extending in a horizontal direction, and the hatchet held downward. The prisoner was standing out a few steps in front of the gallery, and being requested by one of his friends, (a witness,)...
To continue reading
Request your trial
-
Hicks v. State
......State, 25 Tex. 33, 78 Am. Dec. 520; Jordan v. State, 10 Tex. 479; Hamby v. State, 36 Tex. 523; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Atkinson v. State, 20 Tex. 522; Farrer v. State, 42 Tex. 265; Ferrell v. State, 43 Tex. 503; Hill v. State, . Page 760 . 11 Tex. App. 456; Ellison v. State, 12 Tex. App. 557; Neyland v. State, 13 Tex. App. 536; Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 Am. St. Rep. 895; Childers v. State, 33 ......
-
Cook v. State
......Long, 39. Cal. 694, the court held (page 696), 'To constitute. murder of the first degree, there must be not only an. intention to take life, but it must also be a deliberate and. premeditated killing.' There is a similar statute in. Texas, and in the case of Atkinson v. State, 20 Tex. 522, the court, on page 530, say: 'The question arises on. the construction of the words 'premeditated and. deliberate killing.' As murder in the first degree [46. Fla. 46] is the only grade which is punished capitally, it. must be presumed that it was the object of the ......
- Vance v. State
-
Walker v. State
...... And we are of opinion that there was nothing in the evidence in this case to call for an exposition of the law upon the degrees of murder." . O'Connell v. The State, 18 Tex. 343, at 363 (1857). Accord: Atkinson v. The State, 20 Tex. 522,. at 529 (1857): . "The court below, upon these facts, instructed the jury as to the law, by reading them the charge, verbatim, in the Jordan case (10 Tex. 492-4), and by giving them other charges, as asked by counsel for the prisoner, on the subjects of manslaughter, ......