Childs v. State

• Decision Date: 18 March 1896
• Citation: 34 S.W. 939
• Parties: CHILDS v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 939

CHILDS v. STATE.

Court of Criminal Appeals of Texas.

March 18, 1896.

Appeal from district court, Lamar county; Ben H. Denton, Special Judge.

Willie Childs was convicted of murder in the second degree, and appeals. Affirmed.

Hodges & Jackson, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 37 years in the penitentiary, and he prosecutes this appeal. The court charged upon murder of the first and second degrees, and manslaughter, and also gave a charge on self-defense. The only exceptions taken in the case are to the charge of the court, and we will discuss such as are necessary to a disposition of this case.

The court gave the following charge, which is assigned as error: "If you believe, from the evidence, beyond a reasonable doubt, that the defendant, acting alone or as a principal with Stanley Rodgers, with a deadly weapon or instrument, reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without adequate cause, and not in the defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did, in Lamar county, Texas, * * * unlawfully shoot and kill Mrs. Bettie Hickman, * * * you will find him guilty of murder in the second degree, and assess his punishment," etc. Appellant claims that this charge is erroneous, because it does not define, in that connection, what "adequate cause" is; and it is insisted, on this question, that the definition of implied malice is incomplete. As we understand it, the state of mind, in the killing upon implied malice and manslaughter, is the same. In the one instance, the state of mind is engendered without adequate cause, while, in the other, the state of mind is produced by an adequate cause. If the court had failed anywhere to instruct the jury further as to adequate cause, there might be some basis for the contention of the appellant. The court had previously defined implied malice as a homicide "in which an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and it is murder in the second degree." The court further gave a charge on manslaughter, in which he gave a definition of adequate cause. By the court's charge, the jury were authorized to look to any other portion of the charge for a definition of adequate cause, and it is hardly presumable that the jury could have been misled by the failure of the court to define adequate cause immediately in connection with the charge on murder in the second degree, or that they would not look to other portions of the charge to ascertain what the court meant by adequate cause. It occurs to us that the contention of the appellant is not only untenable, but is hypercritical.

Appellant excepted to the charge of the court on the question of conspiracy. The court, having given a charge on the theory that the appellant and Stanley Rodgers entered into a conspiracy to provoke Mrs. Hickman into a difficulty, for the purpose of inflicting death or serious bodily injury upon her, on this theory instructed the jury that, if they believed such a conspiracy existed, and that the parties armed themselves and provoked the difficulty with the purpose of killing or inflicting serious bodily injury, and in pursuance of such conspiracy they did kill said Mrs. Hickman, the defendant would be guilty of murder, whether he or his codefendant committed the homicide, and although, after provoking the difficulty, they may have slain the deceased in self-defense. The appellant contends that this instruction was erroneous, because there was no evidence authorizing such a charge. We have examined the testimony carefully in this connection, and, in the view we take of it, there was testimony requiring the court to charge on the subject; and the court not only gave an affirmative charge on the subject, but gave the converse of the proposition in favor of the appellant. In this there was no error.

The court also instructed the jury as follows: "If you believe that the defendant armed himself and went upon Mrs. Hickman's premises for the purpose of provoking a difficulty, and provoked her to attack him by profane, insulting, and abusive language to her, and if you do not find, from the evidence, that he did so for the purpose and...