Davis v. State

• Decision Date: 06 June 1928
• Docket Number: (No. 11556.)
• Citation: 10 S.W.2d 116
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

10 S.W.2d 116

DAVIS v. STATE.

(No. 11556.)

Court of Criminal Appeals of Texas.

June 6, 1928.

On Motion for Rehearing.

October 24, 1928.

Appeal from District Court, Lamar County; George P. Blackburn, Judge.

Bill Davis was convicted of murder, and he appeals. Affirmed.

Sturgeon & Sturgeon, of Paris, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for murder; punishment being 15 years in the penitentiary. It is not necessary to set out the facts in detail. From the state's evidence the killing was not in self-defense. On the other hand, appellant's evidence raised that issue.

Appellant sought a continuance on account of the absence of Miss Eufa Bunch. He names his application as the "first" for continuance. From the court's explanation it appears to be a second application. Appellant had been tried on the 29th day of September, at which time a first application for continuance had been overruled. The record does not show whether the continuance then was sought for this same witness. In that trial the jury failed to reach a verdict. A second trial was had at the same term of court on the 17th day of October, at which time the application for continuance now under consideration was presented. Article 544, C. C. P., requires that a subsequent application for continuance by defendant must state that the absent testimony "cannot be procured from any other source known to the defendant." A second application must conform strictly to the statute, nothing being presumed in its favor. Henderson v. State, 5 Tex. App. 134; Barrett v. State, 9 Tex. App. 33; Goode v. State, 57 Tex. Cr. R. 232, 123 S. W. 602; Brannan v. State, 108 Tex. Cr. R. 418, 1 S.W.(2d) 279. (Many other authorities on the requisites of a second application for continuance are collated in the notes under article 544, 1 Vernon's Ann. Tex. C. C. P. p. 466, and under section 310, Branch's Ann. Tex. P. C.)

In lieu of the requisite quoted from article 544, C. C. P., it is stated in the present application "that there is not a witness in attendance upon this court that the above-stated facts [those expected to be obtained from the absent witness] can be established by." The language employed in the statute and that contained in appellant's application are far from expressing the same thing. It might be true that no witness was in attendance upon the court by whom the facts claimed to be known to the absent witness could be proven, and yet there might be known to accused other available witnesses from whom the same testimony could be procured. The learned trial judge says, in his qualification to the bill presenting complaint at his action in denying the continuance, that the application failed to present facts from which a conclusion might be drawn that the absent witness would be located, so that process of the court could be served. We are inclined to agree that the view of the court so expressed is sustained by the record, but do not discuss it; the application being insufficient because of the defect already pointed out.

This prosecution arose after the present statute defining murder became effective. See Acts Reg. Sess. 40th Leg. c. 274; Acts Sp. Sess. 40th Leg. c. 8. The court instructed the jury as follows:

"(1) The Revised Penal Code of the state of Texas provides in substance and effect that whoever shall voluntarily kill any person within this state shall be guilty of murder.

"(2) Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing.

"(3) Malice is the intentional doing of a wrongful act toward another without legal justification or excuse, and 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.

"(4) Murder, as above defined, may be committed either with, or without, malice aforethought. When murder is committed with malice aforethought the punishment for such murder shall be death, or confinement in the penitentiary for life, or confinement in the penitentiary for any term of not less than two years. When murder is committed, but not upon malice aforethought, the punishment for such murder is confinement in the penitentiary for not less than two years nor more than five years.

"(5) And in any murder case the punishment cannot be greater than confinement in the penitentiary for a period of five years, unless from all the facts and circumstances in evidence in the case, the jury believes beyond a reasonable doubt that the defendant is guilty of murder as herein defined, and that defendant, in killing deceased, was prompted by and acted with his malice aforethought."

It is not necessary to set out paragraph 6 in detail. In substance, it instructed the jury that, if they found from the evidence beyond a reasonable doubt that appellant voluntarily killed deceased by striking him with an iron bar, and was prompted thereto by malice aforethought, and was not acting in his own self-defense, they should find appellant guilty of murder and assess his punishment at death or confinement in the penitentiary for life, or for any term of not less than two years; that if they found from the evidence beyond a reasonable doubt that appellant killed deceased by striking him with an iron bar, not in his own self-defense, and further the jury did not believe beyond a reasonable doubt from all the facts and circumstances in evidence that appellant was prompted by and acted from malice aforethought they would find him guilty of murder and assess his punishment at confinement in the penitentiary for not less than two nor more than five years.

"(7) And in the event you find defendant guilty of murder (if you do) in no event can the jury assess his penalty therefor at a greater penalty than confinement in the penitentiary for five years unless the jury believes beyond a reasonable doubt, from all the facts and circumstances in the case in evidence before you, that defendant, in killing the said Terry, was prompted by and acted with malice aforethought, as malice is defined to you in this charge in the third paragraph thereof."

In paragraph 8 the jury was substantially told that, if they found appellant guilty of murder, but had a reasonable doubt as to whether the killing was committed upon malice, then they must give the benefit of such doubt to appellant, and in such event they could not assess a greater penalty than confinement in the penitentiary for a period of five years.

Appellant's written objections to the charge were because it permitted appellant to be convicted of "murder" although the killing might not be upon malice. Special objection was directed to paragraph 4 because it informed the jury that "murder," as now defined in the charge and in the statute, might be committed either "with or without malice," and if committed without malice the punishment should...