Black v. State, 20198.

Decision Date22 March 1939
Docket NumberNo. 20198.,20198.
PartiesBLACK v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Brewster County; C. R. Sutton, Judge.

Francis Marion Black, Jr., was convicted of murder, and he appeals.

Affirmed.

A. E. Owens, of Alpine, Wallace Hughston, of McKinney, and Mae M. Ament, of Alpine, for appellant.

Alan R. Fraser, Dist. Atty., of Alpine, Roy D. Jackson, Dist. Atty., of El Paso, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder; the punishment assessed is death.

Appellant's first contention is that the court erred in overruling his motion to quash the indictment on the ground that it charged no offense against the law of this state. The indictment, omitting the formal parts, reads as follows: "* * * That on or about the 9th day of June, A. D. 1938, and anterior to the presentment of this Indictment, in the County and State aforesaid, Francis Marion Black Jr and Guinevere Kerns Black did, then and there unlawfully, voluntarily, and with malice aforethought, kill Marvin Dale Noblitt by shoving him from a cliff * * * against the peace and dignity of the state."

Appellant contends that the indictment merely charges that he killed deceased by a shove. We cannot agree with him. The shove was not the only means charged by which the offense was committed; it was only one of the elements included in the means employed to accomplish the homicide. The shoving of the deceased from a cliff is what produced deceased's death. Consequently the cliff is one of a combination of means alleged by which the offense was committed. It is analogous to the shoving of a person from a house, tower, or precipice, so that he would fall to the ground below. The shoving and the falling was not the only means which caused death, but the sudden impact upon hitting the ground below would enter into it. These, however, are merely the natural and probable consequences which follow and flow from shoving the intended victim off the cliff or precipice. Appellant asks: "What killed Marvin Dale Noblitt?" What would have killed him if he had shot the deceased with a rifle. Not the pulling of the trigger, not the powder that forced the bullet through the air, but the bullet that entered the body and tore, broke and ruptured vital organs of the body.

Should it, therefore, be necessary that the indictment charge that appellant shot the deceased with a rifle loaded with powder and lead; that the powder exploded when the trigger was pulled, which in turn sent the lead missile through the air with great force and caused it to enter the body of the deceased and break and rupture vital organs in the body of the deceased from which he died? We think not under our present system of criminal pleading.

If the acts constituting the offense are charged, it is ordinarily sufficient. What, then, are the acts charged in the instant case which constitute the offense? Not the shoving, but the shoving off the cliff; that being done, the result which followed was but the natural consequences of the act. Consequently, the only act that was necessary to be charged was the act of appellant which set in motion the death dealing blow to the deceased. A mere shoving of the deceased would not and did not produce his death. But the shoving from the cliff so that he fell a great distance to the ground below, striking rocks, did produce his death.

Appellant, relying on the case of Middleton v. State, 114 Tex.Cr.R. 263, 25 S.W.2d 614, 615, asserts that if the death of the deceased had been produced by poisoning, this court would not hold an indictment sufficient which merely charged that the accused poisoned the deceased. This may be true, because such a charge would be the statement of a conclusion and not the statement of any fact. Moreover, Articles 1197, 1198 and 1199, P.C., set forth several ways by which the offense of murder by poisoning may be committed. Unless an indictment charged one of these ways as specified in the statutes, it would be clearly insufficient in law. That is so by reason of the statutes. The following pertinent language is noted in the case of Middleton v. State, supra:

"The articles above quoted (Arts. 1197, 1198, 1199, P.C.) set forth several ways by which the offense of murder by poisoning may be committed. For example, under article 1197, supra, the offense may be committed by mingling the poison with food, drink, or medicine, or by poisoning, or causing to be poisoned, a spring, well, cistern, or reservoir of water. Under article 1198, supra, the offense may be committed by causing another to inhale or swallow poison, or by administering poison to another. The indictment fails to particularize the acts complained of. It merely charges in general terms that appellant committed the offense of murder by poisoning the deceased with strychnine. Whether the strychnine was administered by appellant to deceased, or whether appellant was charged with mingling such poison with the drink, food, or medicine is not averred. As far as the allegations of the indictment are concerned, the manner in which appellant poisoned deceased is a matter of conjecture."

In the instant case, however, the indictment charges the manner and means by which appellant committed the offense.

In the case of Huddleston v. State, 70 Tex.Cr.R. 260, 156 S.W. 1168, also relied on by appellant, we find that the indictment under which appellant was convicted charged him with killing the deceased by stabbing him with a sharp instrument. Said indictment was attacked as being insufficient on the ground that the simple allegation of stabbing him with some sharp instrument was not a sufficient designation of the instrument used. The court sustained this contention on the ground that where the instrument used is unknown to the grand jury, or cannot be obtained by reasonable diligence, then it is incumbent upon the state to allege, in addition to the fact that it was a sharp instrument, that a further description thereof was unknown to the grand jury.

It is a well-known rule of criminal pleading that where the offense is alleged to have been committed with an instrument, such instrument must be named or described in the indictment, or it must be charged that the instrument used was unknown to the grand jury. However, in the instant case, the indictment charges the manner and means by which the offense was committed—i. e., the pushing of the deceased off the cliff.

Having reached the conclusion that the indictment was sufficient, we deem a further discussion thereof unnecessary, since it would only tend to lengthen the opinion and serve no useful purpose. It might be noted, however, that when the case was called for trial, the state dismissed as to appellant's wife, and proceeded with the prosecution against appellant alone.

Here, as in the court below, the appellant challenges the sufficiency of the evidence to establish the corpus deliciti. To our minds, this presents the most serious question in the case. In order to convict for a homicide, it is necessary that the evidence show the corpus delicti. To do so, the state is required to prove by facts or circumstances, or by both, three necessary elements: (1) That the body of the deceased was found and identified, (2) that the death of the deceased was caused by the criminal act or agency of another, and (3) that the accused is connected with that criminal act or agency.

The death of the deceased and the identification of the body is shown beyond any question. The only difficult question to be determined is the sufficiency of the evidence to show that his death was produced by the criminal act or agency of the appellant. While it is true that appellant made a written confession of his guilt in which he stated that he had shoved the deceased from the cliff, this standing alone is not sufficient in the eyes of the law. However, such confession may be used in aid of other facts and circumstances to establish the corpus delicti. Said facts and circumstances may include the physicial or external appearance of the body of the deceased, marks of violence thereon, if any, and all of the surrounding facts and circumstances at or subsequent to the commission of the alleged offense which would tend to negative the supposition or hypothesis that the act could have been the result of natural causes or accident.

We will, therefore, state the substance of the evidence adduced upon the trial as the same appears from the record, and then apply the rules of law to these facts to determine the sufficiency thereof.

It appears from the record that appellant was reared and educated in the State of Kansas; that he finished his education at the University of that state. In the year 1934, appellant and his wife were married in Dallas, Texas. After their marriage, they returned to Kansas, where he induced her to invest some money in stocks. This business venture resulted in a loss of money and he decided to retrieve these losses in some manner. He conceived the idea of adopting a boy, insuring his life, making himself the beneficiary, and then causing the insured to meet his death in such a manner that it would appear to be due to an accident. With that object in mind, he made inquiry of two insurance companies in the State of Kansas concerning insurance on the life of a boy he had taken to rear, and whom he intended to adopt. He asked for $50,000, but was informed that he could not get a policy in excess of $5,000 on a child under 15 years of age. He and his wife then came to San Benito, Texas, where he opened up a radio repair shop. While thus engaged, he made inquiry about some boy 12 or 13 years of age whom he might adopt. He was put in touch with the mother of the deceased. He told her that he expected to go to San Antonio and open up an ice cream parlor and desired to adopt a boy who would be...

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