Brown v. State

Decision Date01 January 1859
Citation23 Tex. 195
CourtTexas Supreme Court

An affidavit for a continuance by the defendant (indicted for murder), which stated, that he was “informed,” that he could prove by certain witnesses (named in the affidavit), that there were two other men, were threatening the life of, and carrying weapons for, the deceased, at and before the time of his death; but which neither stated the source of his information, that he believed it to be true, nor disclosed whether or not he was informed of the names of the persons, thus said to have threatened, is not sufficient.

Extracts from commentaries upon the general nature of presumptive evidence, which are intended as directions to aid the mind in arriving at a correct conclusion; those for instance, illustrating the precautionary considerations to be borne in mind in coming to a proper conclusion upon the facts, or the relative value to be given to circumstantial evidence, and duty of the jury to acquit, when less conclusive than the positive, direct evidence of one witness, are not rules of law to be obeyed, but of reason, to be considered.

Charges which embody such propositions as rules of instruction to the jury, are in opposition to the test of the sufficiency of proof established by art. 640, Code Crim. Proc. viz.: that the concurrent minds of a jury of twelve men shall be satisfied of the guilt of the prisoner, beyond a reasonable doubt; they are also opposed to art. 643, Code Crim. Proc., which provides that the jury are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except, etc.; and also to arts. 594, 595, Code Crim. Proc., which forbid the judge to discuss the facts, or use arguments calculated to rouse the sympathy, or excite the passion of a jury, requiring of him to state plainly the law of the case; and such charges are properly refused.

APPEAL from Grimes. Tried below before the Hon. Peter W. Gray.

This was an indictment against the appellant, for the murder of Robert McIntyre. The indictment charged the killing to have occurred on the 6th day of March, 1858, in the county of Grimes.

The indictment was found on the 22d day of April, of the same year, and a trial had at the same term.

The defendant moved for a continuance of the case; the affidavit on which the application was based, in addition to the contents thereof, as recited in the opinion, further stated, that “this defendant did not know that he could prove these facts, or of the materiality of said testimony, in time, to have said witnesses brought into court; he is informed, and believes, that one, if not all, of these witnesses are in Harris county.” The application was refused; to which the defendant excepted.

The testimony was wholly circumstantial. The reason assigned by the court, for the refusal of the charges asked by the defendant to be given, was, that they were sufficiently embraced in the general charges.

The general charges given by the court, contained an exposition of the difference between direct and circumstantial evidence; the pertinency and province of proof of facts, as circumstances tending to establish an issue, and that, “in order to find against the accused, you ought to be satisfied beyond a reasonable doubt, that he (defendant) killed him (McIntyre), that is--not beyond a possible doubt, or an imaginary doubt, nor beyond a doubt that might arise on a supposed case,--but it must be such a doubt as naturally presents itself to the mind, on the facts before you in evidence, and as would arise in the minds of men of good judgment and sense. All the material facts proved to your satisfaction, ought to lead to the conclusion that he did the deed, to the exclusion of a reasonable belief that he did not, or that some other person did it. And if the evidence satisfies your minds and consciences, that the accused did kill the deceased, and does not show that some other person had a motive to do it, and might have done it, then it is sufficient to find the fact.”

The jury found a verdict of guilty, and assessed the penalty at solitary confinement in the penitentiary for life. A motion for a new trial was overruled. Judgment in accordance with the verdict. Notice of appeal was given by the defendant; and sentence and execution of the judgment were reserved until the determination of the appeal.

M'Adoo & Finley, for the appellant. This is a case of circumstantial evidence. Within one month after the alleged killing of M'Intyre, the appellant was indicted and put upon trial. During all of this time he had been confined in jail, without any means of hunting testimony in his defense. He had no counsel until just before he was put upon trial, and had no legal advice.

When the cause came on for trial, the defendant moved for a continuance, by affidavit, for want of testimony material to his defense. The affidavit shows that the witnesses were without the limits of the county, and that the materiality of their testimony did not come to his knowledge in time to have the witnesses brought into court by due process of law. This, we insist, was sufficient for a continuance, if the evidence proposed to be adduced was material to his defense.

Was the evidence of the witnesses, Prue Stucky, Lauderdale Stucky, and George Moore, material?

The entire evidence was circumstantial. The evidence proposed,--that there were other persons in the same community, who were, at the time of the killing, carrying arms for, and threatening the life of, the deceased,--if introduced, would have raised an hypothesis consistent with the defendant's innocence, and he was entitled to the benefit of every fact that could be introduced to raise and support this hypothesis. Cooper v. The State, 19 Tex. 458.

The case above cited (Cooper v. The State) is directly in point. In that case (19 Tex. 459), we find this language: “When this was made the ground for a motion for a new trial, and the facts were before the court, and the character of the evidence seen, we think the materiality of the witness was so apparent, that a new trial ought to have been granted.” By reference to the facts proposed to be proven in that case, it will be apparent that they are much less material than those proposed in this.

In the case cited, the court do not decide that the court below erred in refusing the continuance, at the time it was asked, nor do they decide the contrary. We submit the question, was it not error? Though the court could not judicially know that the case at bar would be a case of circumstantial evidence, in advance, yet the testimony was of a character that would be relevant in a large class...

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13 cases
  • Hankins v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 18, 1981
    ...wholly on circumstantial evidence the defendant was entitled "to have the law applicable to it given in charge to the jury." In Brown v. State, 23 Tex. 195 (1859), the Supreme Court held that the defendant's requested charges on circumstantial evidence were taken from the commentaries of el......
  • State v. Foster
    • United States
    • North Dakota Supreme Court
    • November 24, 1905
    ... ... N.D. 522, 75 N.W. 779 ...          An ... information should charge the same offense as that of the ... complaint on preliminary examination. People v ... Cohen, 50 P. 20; People v. Crespi, 46 P. 863; ... State v. Wright, 91 N.W. 311; People v ... Christian, 35 P. 1043; Brown v. State, 64 N.W ... 749; Yaner v. People, 34 Mich. 286; Davis v ... State, 22 S.W. 979; State v. Farris, 51 P. 772; ... Com. v. Linton, 2 Va. 205; section 7954, Rev. Codes ...          When an ... act is to be performed in fulfillment of a statutory ... requirement, Sunday will ... ...
  • Wilson v. Newton County
    • United States
    • Texas Court of Appeals
    • February 9, 1925
  • Eytinge v. Territory of Arizona
    • United States
    • Arizona Supreme Court
    • March 20, 1909
    ...25 Ky. Law Rep. 2161, 80 S.W. 197; State v. Crane, 202 Mo. 54, 100 S.W. 422; Bradley v. State, 128 Ga. 120, 57 S.E. 237; Brown v. State, 23 Tex. 195. 2. the examination of the jurors upon their voir dire, the court sustained objections made by the territory to the following question asked o......
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