Carr v. State

• Decision Date: 27 December 1916
• Docket Number: (No. 4328.)
• Citation: 190 S.W. 727
• Parties: CARR v. STATE.
• Court: Texas Court of Criminal Appeals

190 S.W. 727

CARR v. STATE.

(No. 4328.)

Court of Criminal Appeals of Texas.

December 27, 1916.

Appeal from District Court, Sabine County; A. E. Davis, Judge.

George Carr was convicted of murder, and he appeals. Reversed and remanded.

J. W. Minton, of Hemphill, and Beeman Strong, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at five years' confinement in the penitentiary.

So far as the application of the law to the questions presented for revision is concerned, the facts may be briefly stated: The killing of deceased occurred at the house of Capps, a brother-in-law of appellant. Appellant was visiting Capps and family, Capps' wife being the sister of appellant. There was a social function in vogue. Deceased, Royal Jordan, and his brother, Elbert, were present; both of them were more or less drinking; Elbert considerably intoxicated. In the room where the guests were assembled Elbert Jordan became boisterous. Capps insisted upon better behavior on his part, to which Elbert Jordan did not accede. Capps finally told him he must desist or get out. Some of the gentlemen present took Elbert Jordan from the house out into the yard. Deceased came in from the yard onto the gallery when this occurred. Elbert Jordan also returned to the gallery about the time of the trouble. Deceased was standing on the gallery, where other people were also, some of the testimony showing others were close to the deceased, while some of the testimony tended rather to isolate him a few feet. The witnesses also differ as to whether deceased did or said anything. There is testimony showing that he did not, while there is evidence also to the effect that he threatened to take the lives of one or more of them. The state's evidence is to the effect that appellant started from the door across the gallery, passing near Elbert Jordan, and two of the witnesses testified they saw him strike with his right hand or arm; at least saw his right arm go out in the direction of deceased, and that he was within arm's reach. None of them saw him with any instrument of any sort in his hand. The evidence shows without question that deceased was struck by a sharp instrument of some character in the right groin, the wound being from two to three inches long and at its greatest depth about one inch. The instrument seems to have severed or punctured an artery from which deceased died from bleeding.

The language in the indictment is this:

"By then and there cutting him with a sharp instrument, a better description of which the grand jury is unable to give, and the name of sharp instrument is unknown to the jurors."

The only description of the instrument on the trial was that the wound was intlicted, or could have been inflicted, by a sharp instrument. There was no attempt, so far as the record shows, to show that the grand jury used any diligence to ascertain the nature or kind of instrument, or that by reason of diligence they could or could not have ascertained the character or kind of instrument used. This is made a question for revision. Under the authorities we are of opinion that the grand jury should have charged the character of instrument used if they could have obtained the information. This being a charge of murder, the character of the instrument is usually necessary to be charged, and especially so if the kind and character used could be obtained. Upon another trial this question should be met by proper evidence, and if the character of the instrument can be ascertained by the grand jury, another indictment should be obtained setting forth and describing it.

Two or three questions are presented with reference to charges given and refused, and omissions in the charge. It is contended that articles 1147 and 1149 of the Revised Penal Code of 1911 should have been given in charge to the jury; and in this connection that the jury should also have been instructed with reference to the presumption arising from the use of a weapon. Under the facts of this case the court erred in omitting charges on these matters, and also in refusing the special requested instructions.

There is nothing to indicate in this record that the instrument was a deadly one, and in fact there is no testimony as to what kind of instrument was used, except it was a sharp one. If the weapon used was not a deadly one, it would not be presumed that appellant intended to kill, unless as under the circumstances stated in those two articles. The wound does not indicate it. From all the testimony, if appellant is the party who inflicted the wound, it was done by throwing out his arm and...