Connell v. State

• Decision Date: 04 May 1904
• Citation: 81 S.W. 746
• Parties: CONNELL v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W. 746

CONNELL v. STATE.

Court of Criminal Appeals of Texas.

May 4, 1904.

Appeal from District Court, Bell County; John M. Furman, Judge.

John Connell, Jr., was convicted of murder in the second degree, and appeals. Affirmed.

Henderson & Freeman, Winbourne Pearce, and J. B. McMahon, for appellant. Jno. D. Robinson, Dist. Atty., and 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. This case was before us on a former appeal, and was reversed. The facts therein stated are substantially as proven on the present trial. See Connell v. State (Tex. Cr. App.) 75 S. W. 512.

The state proved the dying declarations of deceased, by witness Yarbrough, as follows: "That he heard of deceased being hurt, and went over to his house to see him. When witness arrived, deceased had been removed from the point outside of his yard into the house, and was lying on his bed in the house. His wounds had been dressed by the physicians, and deceased was very weak. He called witness to his bedside, and asked him to stay with him to the end, and witness told him he would. Deceased then made a statement to witness, and a few minutes afterwards became unconscious, and so remained until he died. Defendant objected to the introduction of said statement as a dying declaration because no sufficient predicate had been laid for its introduction; and said objection was overruled, and defendant excepted to the ruling, and said witness was permitted to, and did, testify, over defendant's objection, as follows: `Deceased told me his son John had done it, and that he had no cause for doing it.' And defendant further objected to said evidence because same was not the statement of any fact or facts by deceased, but was merely the statement of the opinion or belief or conclusion of deceased, and because same was incomplete and fragmentary." The court, in explaining this bill, refers to the evidence as the predicate for the introduction of the testimony, and we think that this was ample. We also hold that the statement by the declarant was admissible. Pierson v. State, 18 Tex. App. 524; Roberts v. State, 5 Tex. App. 141; Sims v. State, 36 Tex. Cr. R. 154, 36 S. W. 256.

Appellant contends that the court's definition of "malice" and of "implied malice" is inadequate. In the former trial, appellant was acquitted of murder in the first degree, and consequently no higher degree was submitted than murder in the second degree. The court, in defining "malice" and "implied malice," instructed the jury as follows: "The distinguishing characteristic of murder in the second degree is implied malice aforethought. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will, in law, justify, excuse, or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Malice, in its legal sense, denotes a wrongful act done intentionally, without just cause or excuse." In its ordinary legal sense, under the definitions, malice denotes a wrongful act done intentionally, without just cause or excuse. When applied to murder, malice aforethought is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts done or words spoken. This, as we understand it, is in accord with the authorities. Crook v. State, 27 Tex. App. 242, 11 S. W. 444; Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 Am. St. Rep. 895; Harrell v. State, 39 Tex. Cr. R. 204, 45 S. W. 581; Cain v. State, 42 Tex. Cr. R. 214, 59 S. W. 275. Implied malice, where that issue is presented, as here, must also be defined. So far, no affirmative or substantive definition has been given of this character of malice. The definitions usually given are negative —bounded on the one side by express malice, and on the other with circumstances which mitigate or extenuate the homicide, or which reduce it to excusable or negligent homicide. Neyland v. State, 13 Tex. App. 548; McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Boyd v. State, 28 Tex. App. 137, 12 S. W. 737. In the latter case, Judge Wilson, for the court, assumed to lay down what he considered to be a proper charge on implied malice, to wit: "Implied malice is that which the law infers from or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse, or justify the act, the law implies malice. If, therefore, you believe from the evidence that defendant unlawfully killed deceased, and, in doing so, did not act under the immediate influence of sudden anger, rage, resentment, or terror, arising from an adequate cause—that is, such cause as would commonly produce such passion in the degree that would, in a person of ordinary temper, render the mind incapable of cool reflection —the killing would be upon malice, and he would be guilty of murder in the second degree." As a general proposition, so far as we are advised, except where a charge is given on murder in the second degree, and it is given in the negative form, bounded on the one side by murder in the first degree, and on the other by manslaughter, which is based on adequate cause, it is the duty of the court to define "adequate cause." See Whitaker v. State, 12 Tex. App. 436; Brunet v. State, 12 Tex. App. 531; Neyland v. State, 13 Tex. App. 536; Childs v. State, 35 Tex. Cr. R. 574, 34 S. W. 939; Scruggs v. State, 35 Tex. Cr. R. 624, 34 S. W. 951; Pollard v. State (Tex. Cr. App.) 73 S. W. 953; Thomas v. State (Tex. Cr. App.) 74 S. W. 36. In McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941, which is the only exception called to our attention, the court appears to predicate its opinion on the proposition that there was no adequate cause in the case, and the charge defining "adequate cause," as in manslaughter, was not called for. In the majority of the cases above cited, manslaughter was in the case, and necessarily the distinction between murder and manslaughter was required to be sharply drawn. In some of the cases "adequate cause" was not defined in connection with the charge on murder in the second degree, but, a charge on manslaughter being given in the case, the definition of "adequate cause," as therein contained, was held sufficient —the charge on murder in the second degree contained "adequate cause," referring to the definition as contained in manslaughter. Here the jury were instructed that "malice aforethought," as applied to murder in the second degree, includes all of those states of the mind under which the killing of a person takes place without any cause which will, in law, justify, excuse, or extenuate the homicide. There was here no definition of "express malice." And if there was any error, it was in failing to give the definition of "express malice," so that the jury might be properly informed of the distinction between express and implied malice. No injury could have resulted to appellant on this account, inasmuch as he was acquitted of murder in the first degree. There was no necessity for the court to draw a distinction between murder in the first and second degrees, inasmuch as appellant could have been convicted of murder in the second degree, although the evidence might establish his guilt of murder in the first degree. Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108, and authorities there cited. However, it was necessary for the court to draw the dividing line between murder in the second degree and manslaughter, as that issue was presented in the case. We believe this was adequately done—after instructing the jury upon implied malice—to the effect: "If the killing was in a sudden transport of passion, aroused without adequate cause, and not in self-defense, as will be hereinafter defined, and you believe he cut deceased with a deadly weapon with intent to kill him, he would be guilty of murder in the second degree." In regard to manslaughter, the court had already told the jury that implied malice would be inferred when the killing took place without any cause which would, in law, justify, excuse, or extenuate the homicide. "Extenuate," in this connection, has the same meaning as "mitigate," and refers to a reduction of the grade of the offense, as well as to a reduction of the punishment. In a subsequent instruction of the court defining "manslaughter," which embraces a definition of "adequate cause," and the application of the law on that subject to the facts of the case, there was a sufficient charge on manslaughter; and, considering the charge on murder in the second degree and the charge on manslaughter, the jury was properly informed as to the distinction between the two offenses, or grades of offense.

Appellant further insists that the court failed to properly instruct the jury in regard to appellant's intent to kill in connection with the charge on manslaughter. It is urged that the jury should have been distinctly told that, notwithstanding they believed the weapon used was a deadly weapon, yet, if they believed appellant had no intent to take the life of deceased, and he killed him in a sudden transport of passion, without adequate cause, he could only be convicted of manslaughter. In support of his contention, we are referred to Thompson v. State, 24 Tex. App. 383, 6 S. W. 296; Fitch v. State, 37 Tex. Cr. R. 500, 36 S.W. 584; Perrin v. State, 78 S. W. 930, 9 Tex. Ct. Rep. 533. While there are some expressions in the first-named case which appear to favor appellant's contention, yet, when examined, neither it nor the other...