Caldwell v. State

• Decision Date: 07 June 1890
• Citation: 14 S.W. 122
• Parties: CALDWELL v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 122

14 S.W. 122

CALDWELL v. STATE.¹

Court of Appeals of Texas.

June 7, 1890.

Appeal from district court, Harris county; C. L. CLEVELAND, Judge.

Conviction for murder in the first degree. On the question of alibi the court charged: "If the jury entertain a reasonable doubt as to the presence of defendant at the place where deceased was killed (if killed) at the time of such killing, the jury should acquit defendant.

A. C. Allen, J. B. Stewart, and J. R. & E. Burns, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

1. We think no error was committed in any ruling of the court in admitting testimony objected to by the defendant. The paper found on the premises of the deceased was proved to be in defendant's handwriting by expert testimony. The orders used as standards of comparison were sufficiently established as writings made by the defendant. The book was found in defendant's house, and it was proved that the same belonged to and was used by him to write in, and that the writing found on deceased's premises was upon a leaf taken from said book. Without discussing in detail the several assignments of error relating to the admission of evidence, we will merely say that, in our opinion, no illegal testimony was admitted against the defendant. That he was the author of the writing found on the premises of the deceased was, we think, legally and satisfactorily established. Code Crim. Proc. art. 754; Heacock v. State, 13 Tex. App. 97; Walker v. State, 14 Tex. App. 609; Haynie v. State, 2 Tex. App. 168; Long v. State, 10 Tex. App. 186; Speiden v. State, 3 Tex. App. 156.

2. It was not error to refuse to permit the defendant to reproduce the testimony of Dr. Mayfield, given on a former trial of the cause. Dr. Mayfield was living, was a resident of this state, and had been attached as a witness in the cause. If defendant was surprised by the testimony of Dr. Dillard, and desired to contradict it by the testimony of Dr. Mayfield, who was not in attendance upon the trial, he should have applied for a continuance or postponement of the cause. He certainly, under the circumstances shown, could not be allowed to reproduce the testimony of said witness.

3. It is shown by the evidence most conclusively that the homicide was murder in the first degree. It was a deliberate assassination. The issue of murder in the second degree is not raised by the evidence, and the court properly declined to submit the law of murder in the second degree to the jury. Blocker v. State, 27 Tex. App. 16, 10 S. W. Rep. 439.

4. We see no error in the charge upon the issue of alibi. It is sufficient and correct under numerous decisions of this court. Gallaher v. State, 28 Tex. App. 247, 12 S. W. Rep. 1087.

5. Counsel for defendant have earnestly and ably insisted on this appeal that the evidence is insufficient to sustain the conviction. We are constrained to hold the evidence sufficient. While it is circumstantial, it is, to our minds, most cogent and convincing, and fills the measure of the law. It shows that defendant had a motive to kill the deceased. Deceased was a material witness for the state in a theft prosecution then pending against defendant. A short time before the murder the defendant stated that deceased would not appear as a witness in said prosecution. At the place of the murder, and about where the murderer stood when he fired the fatal shot, a threatening writing was found tacked to the fence. This writing was not there a short time prior to the murder, but was found there on the same night of and after the murder. It was shown to be the handwriting of the defendant, and the paper was a leaf taken from a blank book owned by the defendant, and found in his house on the next morning after the murder. Tracks of two persons were trailed from the place of the murder, and these tracks went in the direction of defendant's house. The tracks of one were identified as the tracks of defendant's brother, who lived at defendant's house, and the other tracks corresponded with defendant's feet. At defendant's house a gun was found which had the appearance of having been recently discharged; also shot were found in said house similar to those found in the body of deceased; also paper was found in said house similar to wadding found at the place of the murder, which had been discharged from the gun used by the murderer in committing the crime. It was further proved by those who arrested the defendant that he attempted to evade arrest by concealing himself. We have recited the main inculpatory facts, and we think they establish the guilt of the defendant beyond reasonable doubt, and to the exclusion of any reasonable hypothesis save that of his guilt. The judgment is affirmed.

1. Opinion January 16, 1879, not reported.

ON MOTION FOR REHEARING.

HURT, J.

But one ground is urged for rehearing, viz., the sufficiency of the indictment. The indictment is in these words and figures: "In the name and by the authority of the state of Texas: The grand jurors, good and lawful men of the state of Texas, county of Fort Bend, duly tried on oath by the judge of the district court of said county touching their legal qualifications, impaneled, sworn, and charged to inquire into and true presentment make of all offenses against the penal laws of said state committed within the body of the county aforesaid, upon their oaths present, in the district court of said county, that William Caldwell, late of the county of Fort Bend, laborer, on or about the first day of August, in the year of our Lord one thousand eight hundred and eighty-eight, with force and arms, in the said county of Fort Bend and state of Texas, did then and there, unlawfully and with express malice aforethought, kill one J. M. Shamblin, by shooting him with a gun, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

The first objection to the indictment by counsel for the motion is that it fails to charge that the accused murdered the deceased. Mr. Bishop says: "It is familiar doctrine that, with such exceptions as foreign laws, private statutes, and municipal by-laws, the courts take cognizance of the law they administer; which, therefore, need not be specially brought to their attention, and need not be proved. On the other hand, there is no judicial knowledge of facts, and they must be alleged and established in evidence. Hence, * * * `it is one of the first principles of pleading that you have only occasion to state facts, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.'" "The indictment must embrace * * * the primary facts. For example, if it charges simply that the defendant committed larceny, it discloses only a secondary fact, produced by a combination of primary facts and law; or, in other words, it is a conclusion of the law upon the facts. And this is not a fit statement upon which to put the accused person on his trial. The pleader should set out the primary facts, disconnected from the law; and then the court, applying the law to them, will deduce the legal result." 1 Bish. Crim. Proc. §§ 329, 331. The rule above stated is unquestionably correct, and is applied at common law to all indictments except for murder, perjury, and rape. At common law the indictment in murder must allege that the accused did murder the deceased, and in rape that the accused did ravish the prosecutrix. Murder and rape, as are all other offenses in this state, are statutory. Mr. Bishop says that, being a statutory offense, "the indictment must, as in other cases, substantially contain the essential terms of the statute." "Ravish" is indispensable in the common-law indictment for rape, because it is in the statute of Westminster 2, "if a man from henceforth do ravish a woman." In Davis v. State, 42 Tex. 226, the supreme court held that the indictment was sufficient without the word "ravish" or "rape." This ruling was based upon the ground that rape was a statutory offense, and that the indictment followed the language of the statute. Rape is defined by our Code to be "the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud." Any person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being in this state shall be deemed guilty of murder. Hence murder is the unlawful killing of a reasonable creature in being with malice aforethought. We are not treating of the condition of the slayer's mind. Now, then, if the word "rape" can be omitted from the indictment in a prosecution for that offense, why cannot the word "murder" be omitted in the indictment for that offense? How is it that indictments for robbery, arson, burglary, theft, (or larceny at common law,) are sufficient when those offenses are not by name mentioned in the indictment? At common law there was an allegation in perjury that the accused "did in manner and form aforesaid commit willful and corrupt perjury." What says Mr. Bishop on this subject? "But unless the indictment is, as in murder, drawn on a statute the terms of which are not sufficiently covered by the preceding allegations, such a closing averment cannot be necessary, for it is a mere conclusion of law. * * * Indictments should set out facts, not law." 2 Bish. Crim. Proc. §...