Brown v. State
| Decision Date | 01 January 1873 |
| Parties | JAMES H. BROWN v. THE STATE OF TEXAS. |
| Court | Texas Supreme Court |
1. Where the court is satisfied that a defendant who is taken sick during his trial on a charge of felony is too unwell to be present in court at every stage of the trial, the cause should either be temporarily continued, to await his convalescence, or a juror withdrawn and the cause continued.
2. On a trial for felony, no separation of the jury can be allowed, under art. 3070, Pas. Dig., except with the consent of the party on trial; it is not within the power of his attorney to give such consent.
3. When such separation takes place, every juror should be under the control of an officer, that no communication may be had with other persons in regard to the cause on trial.
4. In a capital case, this court will ascertain whether there has been any violation of art. 3059, Pas. Dig., though no exception may have been taken on the trial.
5. There may be other adequate causes, which will reduce a homicide from murder to manslaughter, beside the four provoking causes enumerated in art. 2254, Pas. Dig.
6. On a trial for murder, where there is evidence of malpractice on the part of the surgeon who attended the deceased, the jury should be instructed that they cannot convict of murder, unless satisfied that the death resulted from the wound, and not from the malpractice of the surgeon.
APPEAL from Fort Bend. Tried below before the Hon. L. Lindsay.
The appellant was indicted for the murder of one Ted. Benjamin. The evidence shows that when appellant shot Benjamin, the latter was advancing upon him in an excited and angry manner, swearing he would have his revenge, and denouncing Brown as “a d--d rebel son-of-a-b--h.” No weapon was in the hands of deceased, but an ax and handspike were within his reach when he was wounded by a pistol shot from appellant. The shot entered the lower part of the abdomen and passed through his body. The attending surgeon (?) sewed up the wound on one side of the body, and closed it with adhesive plaster on the other. Benjamin died in seven hours.
On the trial, the attorneys for the state and accused consented to the separation of the jury from the adjournment at night until next morning, the accused not consenting, he being in an adjoining room sick, having been removed by the instruction of his attending doctor during the argument.
The court consented that the jury might separate under the charge of officers of the court, and they were taken to different rooms under different officers, six jurors being under a deputy sheriff, five colored jurors in an adjoining room under two bailiffs, and one white juror at his own house, under an officer. When the court asked the accused why the sentence of the law should not be passed upon him, or if he had anything to say, he answered, “that he did not consent to the jury separating; that he was sick in an adjoining room; and that he desired an appeal to the supreme court.”
The court refused to charge the jury, on the application of appellant's counsel, that they could not find the prisoner guilty of murder unless they were satisfied that Benjamin died from the wound, and not from the malpractice of the surgeon.
It appears that from beginning of the argument up to and including the return of the verdict and the charge of the court and the action of the court and counsel in regard to the separation of the jury, the trial was conducted in the absence of the accused.
Among other charges the court gave the following: “The only adequate causes fixed by our law to reduce the act of killing from murder to manslaughter are an assault and battery;” reciting and quoting the four adequate causes named in the code , and proceeding:
There was a verdict and judgment of guilty of murder in the second degree, and assessing the punishment of appellant at five years' imprisonment in the penitentiary.P. E. Pearson, for appellant.
Attorney General, for the state.
There is some novelty in this case.
Where a defendant in a prosecution for felony is taken ill on the trial, and the court is satisfied, by the opinions of physicians or otherwise, that he is too ill to be present in open court at every stage of the trial, the cause should either be temporarily continued to await his convalescence, or a juror should be withdrawn and the cause continued for the term. The accused should not only be within the walls of the court...
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...death and unless the wound inflicted was the actual cause of the death, the defendant cannot be convicted of murder. 1 Hale 421; Brown v. State, 38 Tex. 482; Kelly on Criminal (4 Ed.) sec. 473. (5) Bill of exceptions, 176, par. 5, motion for new trial on the ground of newly discovered evide......
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...death and unless the wound inflicted was the actual cause of the death, the defendant cannot be convicted of murder. 1 Hale 421; Brown v. State, 38 Tex. 482; Kelly on Criminal Law (4 Ed.) sec. 473. (5) Bill of exceptions, 176, par. 5, motion for new trial on the ground of newly discovered e......