Conner v. State

• Decision Date: 01 January 1870
• Citation: 34 Tex. 659
• Parties: JACK CONNER v. THE STATE.
• Court: Texas Supreme Court

34 Tex. 659

JACK CONNER

v.THE STATE.

Supreme Court of Texas.

1870.

1. In civil actions the jury may decide upon a comparison of the probabilities and according to the preponderance of evidence, but in criminal cases the humane caution of the law requires that the guilt of the accused be established beyond a reasonable doubt.

2. In cases affecting life or liberty, the evidence must be so conclusive, the presumption so strong, as to exclude every rational doubt of the guilt of the accused. Billard v. The State, 30 Tex. 369, cited by the court.

3. In a trial for felony, the court below, commenting upon confessions of the prisoner, charged the jury that if what he said in his own favor, was not improbable in itself, nor contradicted by the evidence for the state, it would naturally be believed by the jury; but that the jury were not bound to give weight to it on that account. Held, that this was erroneous; the jury may not, under such circumstances, deny proper weight to the statements of the prisoner in his own favor. Tipton v. The State, Peck, 308, and other authorities cited by the court.

APPEAL from Williamson. Tried below before the Hon. W. E. Jones.

A detail of the evidence in this case is not necessary. In fact, the opinion of the court comprises all of it that seems to be involved in the rulings.

Shelley, Long & Gray, for the appellant. These counsel filed a very able and interesting argument upon the law and the facts. It is too elaborate, however, for a full insertion of it, and mere extracts would mutilate it.

Wm. Alexander, Attorney General, for the state.

EVANS, P. J.

It appears from the record in this case that the appellant, Jack Conner, was indicted at the October term, 1870, of the district court of Travis county, upon a charge of the murder of one Epsy Lansing The case was removed to Williamson county by change of venue, and at the November term, 1870, of that court, a trial was had which resulted in a verdict and judgment for murder in the second degree, with five years' imprisonment in the state penitentiary.

The state proved by two witnesses, that in the morning, before the deceased and defendant had left their bed-room, a pistol shot was heard in the room, and instantly defendant ran out into the back yard in his night clothes, exclaiming to the witnesses, “Oh, my God! I have killed my darling,” apparently in great distress; and being asked how it occurred, said, “accidentally,” etc. This was the only proof offered that he killed the deceased.

Among the errors assigned are two exceptions to the instructions given by the court below to the jury, the determination of which will be decisive of the case. The first regards the following portion of the charge: * * * “if conflicting testimony exists as to any material fact, the jury must determine, in the best exercise of their judgment, the preponderance of credible testimony. If facts apparently well established appear to conflict with each other, and cannot be so reconciled that the jury can take both into their consideration, they must determine which shall give way to the other in determining the question.” The instruction, however unexceptionable it may be as applied in civil cases, is at variance with the established rule in criminal prosecutions.

In civil controversies between litigants the jury decide according to the preponderance of evidence, that is, upon a comparison of...