Banks v. State

• Decision Date: 02 April 1919
• Docket Number: (No. 5349.)
• Citation: 211 S.W. 217
• Parties: BANKS v. STATE.
• Court: Texas Court of Criminal Appeals

211 S.W. 217

BANKS v. STATE.

(No. 5349.)

Court of Criminal Appeals of Texas.

April 2, 1919.

Rehearing Denied April 30, 1919.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Tom Banks was convicted of murder and appeals. Affirmed.

C. M. McKinnon, of Livingston, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was convicted in the district court of Polk county of the offense of murder, and his punishment fixed at death.

On his appeal but one question is presented and but one question was contained in the motion for new trial, namely, that the evidence does not show appellant guilty of that character of homicide which should be punished by the extreme penalty of death.

It appears from the record that on the night of the homicide, and while at his post of duty on a moving railroad train one Hawkins, a negro brakeman, was shot and killed by some member of a party of negroes who were walking along a dirt road near to the railroad track. No reason is assigned for such shooting, and it does not appear that appellant or any member of the party was acquainted with any of the parties on the train, and that any specific malice could be directed toward the deceased, but under our law the same is not necessary.

One who deliberately uses a deadly weapon in such reckless manner as to evince a heart regardless of social duty and fatally bent on mischief, as is shown by firing into a moving railroad train upon which human beings necessarily are, cannot shield himself from the consequences of his acts by disclaiming malice. Malice may be toward a group of persons as well as toward an individual. It may exist without former grudges or antecedent menaces. The intentional doing of any wrongful act in such manner and under such circumstances as that the death of a human being may result therefrom is malice. In the instant case the appellant admits his presence and participation in the shooting which resulted in the death of the deceased. His written statement, introduced in evidence, is as follows:

"State of Texas, County of Polk.

"The following is a voluntary statement of Tom Banks, Jr., made to me, John McLeod, on this the 3d day of October A. D. 1918, after having first been warned by me, John McLeod, that he did not have to make any statement at all, and that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is herein made.

"On last Sunday night, Sept. 29th, in company with John L. Davis and Garnett Davis, I was going from New Willard to Leggett, Texas, and was walking the dirt road that runs parallel with the railroad track, and just a short way from New Willard we saw a train coming south on the H. E. & W. T. track, and just before the engine passed us, John L. Davis said, `Less shoot into that train,' and I said, `No, less don't do that,' and then Garnett Davis said, `Yes, less shoot into it,' and just before the engine passed us John L. Davis handed me his pistol and said, `Here, take this, and you can burn it,' and I said, `No,' but I took the pistol and just as the train passed I shot into the ground by the wire fence, and looked around, and I saw Garnett Davis shoot into the engine, and as the caboose passed I shot again into the ground, and ...