Boyd v. State

• Decision Date: 02 November 1889
• Citation: 12 S.W. 737
• Parties: BOYD <I>v.</I> STATE.
• Court: Texas Court of Appeals

12 S.W. 737

BOYD

v. STATE.

Court of Appeals of Texas.

November 2, 1889.

Appeal from district court, Harrison county; A. J. BOOTY, Judge.

The conviction was in the second degree, for the murder of Jordan Childs. It was based upon the defendant's voluntary statement, which was admitted in evidence upon a sufficient predicate and without objection. It was to the effect that he and deceased were partners in a cane-mill. That on the fatal day, while a quantity of deceased's cane was being ground, a Mr. McFarland, being present, asked: "Whose cane is that?" referring to certain cane. Witness replied: "It belongs to Mr. ____, and he had better come and get it or it will spoil." Deceased remarked: "Never you mind about that cane; it will be ground." To this witness replied: "It looks like you, having all the molasses you want, don't intend to help any more." Deceased replied: "You are a liar." Witness passed the epithet back, and about that time McFarland left. Deceased then advanced upon witness, calling him a liar. Witness replied to the same effect. Deceased continued to advance until he stooped to pass under a beam to where witness was, when witness seized a stick, and struck him over the head, knocking him down. Seeing at once that he had struck deceased a much harder blow than he intended, he went to deceased's aid, calling for help. Witness closed his statement protesting that he did not intend to strike as hard a blow as he did, and did not intend to kill him. This same declaration, i. e., that he did not intend to strike so hard, was, according to two witnesses, made by defendant immediately after the blow was struck.

Crim. Code Tex. art. 612, provides that "the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears." Article 614: "Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery." Article 593: "Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified or excused by law." Article 595: "By the expression `adequate cause' is meant such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection." Article 574: "The attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury."

A. Pope, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

While the charge of the court explains "express" and "implied" malice, it fails to define "malice aforethought," and is therefore fundamentally erroneous. Babb v. State, 12 Tex. App. 491; Holmes v. State, 11 Tex. App. 223; Garza v. State, Id. 345; Crook's...