Augustine v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation52 S.W. 77
Decision Date21 June 1899

Appeal from district court, Hays county; H. Teichmiller, Judge.

Dave Augustine was convicted of murder in the second degree, and he appeals. Affirmed.

Rud. Kleberg, A. B. Storey, and Ed. R. Kone, for appellant. Fly & Hill and Robt. A. John, Asst. Atty. Gen., for the State.


Appellant was convicted of murder in the second degree, and his punishment assessed at 25 years' confinement in the penitentiary, and he appeals.

Appellant was indicted in the district court of Dewitt county at the December term, 1891, for the murder of Phillip Brassell, alleged to have been committed in said county on the 19th of September, 1876. In 1893 the venue of the case appears to have been changed from Dewitt to Gonzales county. In July, 1896, the venue of the case was changed from Gonzales to Hays county, where the trial and conviction in this case subsequently occurred. The theory of the state, which was supported by evidence, shows that the killing was done at night, by a crowd of armed men, who came to the house of deceased, masked, and took deceased and his three sons from their home, under the pretext of being shown the way to a neighbor's house. When they had proceeded a short distance from the house, deceased and his sons refused to go any further, and thereupon deceased and his oldest son were shot down. The two younger sons were permitted to escape. The state's testimony shows that there were 10 or 15 persons in the crowd. Several were identified; among others, defendant. The state's evidence also tends to show that defendant fired the shot which killed deceased, Phillip Brassell. No special grudge was shown between defendant and deceased, but the homicide appears to have been committed on account of a feud existing between certain factions in Dewitt county at the time; appellant and his companions being on one side, and deceased belonging to the other faction. Appellant relied on his plea of not guilty, under which he claims that the state's evidence failed to identify him as one of the parties composing the alleged mob, and he introduced evidence of an alibi.

Appellant's first proposition is that the court erred in not setting aside the verdict, because the same was contrary to the evidence, in finding that appellant's plea of former acquittal was not true. Appellant claimed that he was entitled to a verdict of not guilty on his plea of former jeopardy in that he had been previously tried and acquitted for the same offense. By an examination of the record it appears that George Brassell was killed at or about the same time that Phillip Brassell was, and by the same parties. The testimony tends to show that the shot which killed George Brassell was fired by another one of the party, and that the shot which killed deceased, Phillip Brassell, was fired by appellant. The proof showed that appellant had been tried and acquitted of the murder of George Brassell; and it is claimed that, said acquittal being a part of the same transaction, his acquittal in that case of that homicide is an acquittal in this case, and is a good plea in bar. This contention might be urged with some force if the killing of both parties was done by one and the same act; that is, if the proof showed that but one shot was fired, and it caused the death of both Phillip and George Brassell, then it might be a good plea in bar. But here the testimony shows that the parties were killed by distinct acts. Mr. Bishop says: "Obviously, there is a difference between one volition and one transaction, and on the view of our combined authorities there is little room for denial that in one transaction a man may commit distinct offenses of assault or homicide upon different persons, and be separately punished for each." 1 Bish. New Cr. Law, § 1061; Rucker v. State, 7 Tex. App. 549; Chivarrio v. State, 15 Tex. App. 330; Forrest v. State, 13 Lea, 103; Clem v. State, 42 Ind. 420; Teat v. State, 53 Miss. 439.

Appellant complains that the court erred in refusing to give his special charges to the effect that, if the jury believed beyond a reasonable doubt from the evidence that the killing of Phillip and George Brassell was one and the same transaction, the defendant having been acquitted on the charge of killing George Brassell, they should find in favor of defendant's plea of former acquittal. From what has been said before, we do not believe the court was required to give a charge on this subject at all, inasmuch as the proof showed that the killing of said two parties, although in the same transaction, was by two distinct acts. The court gave a charge based on the killing in one transaction in pursuance of a conspiracy, and instructed the jury, in effect, that if the defendant and several other persons conspired together, and agreed and planned the killing of Phillip and George Brassell, and in pursuance of such plan and design they killed them, at the same time on the same occasion, such offense, although two persons were killed by two distinct persons, would be but one act, and but one transaction, and no person tried for the murder of either one of the parties is subject to a second prosecution and trial for the murder of the other party killed; "and, if you find the facts to be such, you will return a verdict sustaining the special plea of defendant, although you may believe that Dave Augustine was one of the persons planning the offense, and that he actually killed Phillip Brassell." And the court then instructed the jury the converse of said proposition,—that is, if Phillip and George Brassell were killed at the same time, and by the same party, but not in pursuance of a previously planned conspiracy, the killing of said parties would be distinct acts and separate offenses; and, if they found the killing occurred under such circumstances, to find against appellant's special plea. We do not think that in this matter the court announced a correct legal proposition; for, notwithstanding the conspiracy as planned by them, if the killing of two persons is by distinct and separate acts, though done at the same time, and as a part of the same transaction, the acquittal for the killing of one of said parties is not a bar to a prosecution for the killing of the other. The conspiracy has nothing to do with it, for two persons were killed by distinct and separate acts, as we have seen above. The charge of the court, however, could not have prejudiced appellant, because the jury were instructed to acquit him on the special plea if they found that the killing was in pursuance of a previously planned conspiracy. They evidently found, if they obeyed the charge of the court, that there was no previous conspiracy. That, however, as we have seen, would be no defense, and whether or not their finding is sustained by the proof makes no difference.

Appellant contends that the court erred in charging the jury on murder in the second degree, on the ground that there was no evidence to authorize such charge. We are referred to no authority in this state, but to a Missouri authority,—State v. Punshon (Mo. Sup.) 27 S. W. 1111. We do not understand said case to support the contention of appellant. It holds that when the evidence shows that defendant, if guilty, is guilty of murder in the first degree, and defendant requests an instruction that the jury shall find defendant not guilty, unless they believe he willfully and with malice aforethought shot deceased, it is not error to modify such instructions to the effect that the jury shall find him "not guilty of murder in the first degree." But, whatever may be the doctrine in Missouri, we do not think it is the doctrine in this state. The two degrees of murder are so closely allied, the dividing line sometimes being of such a shadowy character, that it has been held that it is best in every case to charge murder in both degrees. Of course, where the case stands out in relief as murder in the first degree, the court will be justified in charging only murder in the first degree; but even in such a case the court should charge murder in the second degree. We fail to see how appellant could complain, as the charge would be in his favor. Blake v. State, 3 Tex. App. 581; Powell v. State, 5 Tex. App. 234; Jones v. State, 29 Tex. App. 338, 15 S. W. 403; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108.

The failure of the court to charge on circumstantial evidence was not error, inasmuch as the evidence showing the killing of Phillip Brassell, and appellant's participancy therein, was by positive testimony. Sylvanus Brassell testified that he saw appellant when he rode up from the south, and shot his father, while he was looking at one Meadows, a codefendant; that his father was just in the act of falling when he turned to leave. Now, the fact that Phillip Brassell was found the next morning, a little distance from where he was shot and fell, makes no difference; nor does it make any difference that he was afterwards shot by others of the party. He was killed by distinct and separate shots from those which killed George, as the same witness, Sylvanus Brassell, testified to seeing Meadows shoot George Brassell about the time his father was shot by defendant. This, it occurs to us, was positive evidence of the homicide, and did not require a charge on circumstantial evidence.

Appellant further assigns as error that the court erred in not defining the law of conspiracy. While, undoubtedly, the evidence suggested a conspiracy, yet it was not necessary for the court to define this matter. The charge given on principals was sufficiently comprehensive.

Appellant complains of the action of the court in changing the venue from Dewitt to Gonzales county; and also in changing the venue from Gonzales to Hays county; and exception appears to have been reserved in the order changing the venue. The venue was changed on the court's own motion, and...

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