Burnham v. State

• Citation: 43 Tex. 322
• Parties: MATHEW BURNHAM v. THE STATE.
• Decision Date: 01 January 1875
• Court: Supreme Court of Texas

43 Tex. 322

MATHEW BURNHAM

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

Sheeks & Sneed, for appellant, filed an able brief, which from its character, cannot be abbreviated They cited Villareal v. The State, 26 Tex., 107;Johnson v. The State, 27 Tex., 766;Maria v. The State, 28 Tex., 710;Jordan v. The State, 10 Tex., 479;Atkinson v. The State, 20 Tex., 523;McCoy v. The State, 25 Tex., 33;Ake v. The State, 30 Tex., 466.

A. J. Peeler, Assistant Attorney General, for the State.

DEVINE, ASSOCIATE JUSTICE.

Appellant was indicted on the 18th of November, 1873, charged with the murder of H. C. Banks on the 16th of November, 1873, in the county of Hays. A motion for a change of venue being allowed, the cause was transferred to the county of Travis. The trial resulted in a conviction and a verdict of guilty of murder in the first degree.

The errors assigned as grounds for the reversal of the judgment will be examined in the order of their statement. The complaint of the charge to the jury is not sustained by a close examination of the instructions given. The charge did not overlook any right which the accused was entitled to.

The assignments that the verdict of the jury is contrary to law and contrary to the evidence demanded and the evidence has received from the court a thorough examination. From that examination we are led to the opinion that in the record as presented but one question is necessary to be determined; that is, whether or not the homicide (admitted) is murder of the first degree? Article 608 of the Criminal Code defines murder of the first degree as follows: “All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration of arson, rape, robbery, or burglary, is murder in the first degree; and all murder not of the first degree is murder of the second degree.” Omitting from this definition all that is inapplicable to the cause before the court, there remains only the single inquiry, Does the evidence prove that appellant, in the killing of H. C. Banks, is guilty of express malice in the sense in which the words are employed in article 608 of the code? If he is not, then the verdict is contrary to the law and contrary to the evidence.

While no period of time has been settled as necessary to elapse before the sedate and deliberate purpose can be formed, and which is evidence of express malice, and while this sedate and deliberate purpose to kill may be formed but a moment before the perpetration of the unlawful act, and while courts have sometimes attempted to illustrate by examples what acts might or might not constitute express malice, nothing more definite can in truth be said than that all the facts and circumstances of each particular case are the governing or controlling elements of the case, and determine, or should do so, the question whether the homicide is murder of the first or of the second degree, or whether it be manslaughter or excusable homicide.

The evidence in this cause is not of a conflicting character. All the witnesses for the State agree in the material facts. Defendant called no witnesses; the only persons present, Mr. and Mrs. Dugger, appeared for the State; they cannot be considered as having any bias in favor of the accused. Examining the testimony to determine the questions raised on the verdict of the jury, the following are shown to be the material facts: The deceased, H. C. Banks, is shown to have been comparatively a stranger in Hays county; nothing is shown as to his habits or disposition; he had resided a few months in Hays county in “Stringtown;” had been in the employment of the sheriff of that county during the week preceding the day of his death, and was on his way to San Marcos on the 16th of November, 1873, when he lost his life. On passing the house of L. M. Dugger, a few miles from San Marcos, he stopped, being spoken to by Dugger, a few minutes before deceased reached Dugger's premises. The defendant, who had been in Dugger's service during the preceding twelve months, returned to the premises after an absence of about four days, went to “the smoke-house” and commenced packing up his clothes in his blanket preparatory to leaving; he complained to Mrs. Dugger that he had not been treated well, and was going to leave; insulting epithets, angry and bitter words were applied and used by the prisoner and Mrs. Dugger to each other. On his passing from the house to the gate, his bundle on his back, he met the witness, L. M. Dugger, who was returning from his conversation at the gate with the deceased. Defendant remarked to Dugger, “I think you all have been running over me, and I am going to leave.” The latter commanded him “to shut up his mouth.” Appellant made no reply and passed on to the gate; as he approached it he was met by the deceased, who had dismounted from his horse, tied him to the right of the gate and stood in front of it. As defendant approached within a few steps of the gate deceased said to him, “Old man, you are drinking; you had better put down your budget and wait until tomorrow before you go.” Defendant replied, “And who are you?” To which the deceased responded, by saying, “I will show you who I am,” drawing his revolver at the same time, stepping back a pace and presenting...