Clark v. State

• Decision Date: 28 October 1903
• Citation: 76 S.W. 573
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

76 S.W. 573

CLARK v. STATE.

Court of Criminal Appeals of Texas.

October 28, 1903.

Appeal from District Court, Wilson County; M. Kennon, Judge.

Joseph Clark was convicted of murder in the second degree, and he appeals. Affirmed.

Morris & Clifton, B. F. Ballard, Ike D. White, and W. C. Linden, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 15 years; hence this appeal.

Appellant assigns as error the action of the court in swearing the jury, his contention being that the indictment charged J. C. Clark with the commission of the offense, and the jury were sworn to try J. C. Clark; that afterwards, when defendant was arraigned, he corrected his name, stating that he had no middle initial, that his name was Joseph Clark, and the indictment, under the direction of the court, was accordingly amended; that thereafter the jury were not resworn to try Joseph Clark, but tried him under the oath already taken to try said J. C. Clark. There is nothing in this contention. The identity of appellant was the same. The middle initial was an immaterial matter, and subject to amendment. Article 549, Code Cr. Proc. 1895, provides that, when arraigned, a defendant may suggest his true name, if it is not given in the indictment, and the cause then proceed as if the true name had been first recited in the indictment.

Appellant also complains of the charge of the court in defining implied malice. The definition here given is in accordance with the approved forms, and is not subject to the criticism of appellant.

Appellant also contends that the court's charge on manslaughter is on the weight of the evidence, in that it singles out certain portions of the evidence as bearing on appellant's mind at the time of the homicide, and in that it left these matters to be determined by the jury, when it was the duty of the court to have directly told the jury that the evidence showed the existence of such conditions. After the court had defined manslaughter, and had given the jury the law of manslaughter as applicable to the facts, he then charged the jury as follows: "You are to determine from the evidence the state of mind of the defendant when he shot and killed the deceased (if he did so), and in that connection you may consider threats (if any) made by the deceased regarding the defendant, the reputation of the deceased (if such it was) as a violent and dangerous man, the defendant's personal...