Berry v. State, 21780.

• Decision Date: 07 January 1942
• Docket Number: No. 21780.,21780.
• Citation: 157 S.W.2d 650
• Parties: BERRY v. STATE.
• Court: Texas Court of Criminal Appeals

157 S.W.2d 650

BERRY v. STATE.

No. 21780.

Court of Criminal Appeals of Texas.

January 7, 1942.

Commissioners' Decision.

Appeal from District Court, Guadalupe County; Lester Holt, Judge.

Audrey Berry was convicted of murder with malice aforethought, and he appeals.

Affirmed.

Dibrell, Mosheim & Campbell, of Seguin, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for murder with malice aforethought. The punishment assessed is confinement in the state penitentiary for a term of five years.

Appellant challenges the sufficiency of the evidence to justify and sustain his conviction for the offense of murder with malice aforethought.

The evidence adduced upon the trial, as reflected by the record, shows that appellant was employed by Albert Murphy as a clerk in a beer and cold drink stand located in the town of Seguin. On the night of January 25, 1941, the deceased and a number of negroes assembled at the beer tavern and there engaged in drinking and playing a game with cards known as "Coon Can". After midnight, the deceased ordered a bottle of beer for himself and a relative with whom he was sitting at a table. Appellant took two bottles of beer, placed them on the table at which the deceased and his kinsman were sitting, and then stood there for a few minutes. The deceased asked him what he was waiting for, to which appellant replied that he was waiting to get the money for the beer. An argument arose and some very uncomplimentary remarks were passed between them which precipitated a fight. Up to this point there seems to be no material contradiction in the testimony offered by the State and that presented by the defendant.

In his dying declaration the deceased said that he did not throw any beer bottle at appellant; that appellant cursed him and when he arose from his chair the appellant drew a pistol and before he could do anything appellant shot him in the abdomen; that they then clinched and tussled over the pistol; that during the struggle the pistol was fired twice; that one of the shots struck him in the shoulder and the other missed him.

The appellant's version of the affair is that when he waited at the table to get the money for the beer, the deceased cursed him and told him that he would show him who he was and picked up a beer bottle from the table and hurled it at him; that the bottle struck him on the shoulder and he then pulled his pistol; that as the deceased was coming at him he fired being afraid that the deceased would kill him or inflict serious bodily injury upon him; that the deceased caught him and in the struggle the pistol was fired twice; that Albert Murphy, the proprietor of the place, and others interceded, took the pistol from him and separated them. After the difficulty was over, the deceased was first taken to a doctor's office and from there to a hospital where an operation was performed on him. He died on the 31st day of said month, about six days after having received the fatal injuries. The deceased was a large man, six feet or a little more in height and weighed 200 pounds while appellant was five feet six inches tall and weighed approximately 145 pounds. No prior ill will or animosity was shown to have existed between them.

With reference to the appellant's contention that the evidence is insufficient to justify and sustain his conviction for murder with malice, we make the following observation: If appellant shot the deceased without any cause other than a verbal provocation, it would be an unjustified killing and would be murder with malice unless adequate cause existed, and whether or not adequate cause existed, which means such a cause as would commonly produce in a person of ordinary temper that degree of anger, rage or sudden resentment as to render the mind incapable of cool reflection so as to bring it within the definition of murder without malice, is a question of fact to be determined by the jury under an appropriate instruction from the court. When the Legislature repealed the manslaughter statute, all statutes which specified certain acts as constituting adequate cause were also repealed; and the Legislature enacted Article 1257a, Vernon's Ann.P.C., which permits the State or the defendant to offer testimony as to all the relevant facts and circumstances surrounding the killing, etc., for the purpose of permitting the jury to decide whether or not adequate cause existed. Hence this court is not authorized, in the absence of a statute, to say that this or that act constituted adequate cause, but the question is one for the jury to determine from all the relevant facts and circumstances introduced in evidence. In our opinion, the court adequately instructed the jury upon the law of murder with malice, on the law of murder without malice and on the law of self-defense, and the jury having decided from all the facts and circumstances before them that the killing was with malice, such a decision is binding upon this court. Hence we overrule appellant's contention that the evidence is insufficient to sustain his conviction of murder with malice aforethought. See Elsmore v. State, 132 Tex. Cr.R. 261, 104 S.W.2d 493.

Bill of exception No. 1 is without merit.

By bill of exception No. 2 appellant complains of...