Davis v. State
| Decision Date | 20 January 1915 |
| Docket Number | (No. 3375.) |
| Parties | DAVIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Newton County; A. E. Davis, Judge.
Harvey Davis was convicted of murder, and he appeals. Reversed and remanded.
Forse & Hamilton, of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was convicted of murder, and prosecutes this appeal.
The theory of the state was: That appellant and others, on the night of the homicide, were acting together in unlawful purposes. That, among other things, they went to the house of a negro, named Kellum, and that Dock Hughes went in the house and shot the wife of Kellum to death. Kellum killed Dock Hughes. There is no evidence that any of the other parties were in the house, though the state's testimony shows they were about the house or near by.
The court's charge with reference to acting together in the conspiracy and kindred subjects is attacked for various reasons. The writer does not care to review those questions. The charge is in accordance with the opinion in the recent case of Serrato v. State, 171 S. W. 1133. The writer does not agree with that opinion, and believed the charge sustained in that case did not and does not correctly state the law. But the charge in this case seems to be in harmony with the opinion in that case.
The charge is further attacked because it does not submit the law of circumstantial evidence. The writer believes the exception to the charge in this respect to be well taken. This matter is raised in various ways, but suffice it to say that this phase of the law was not given in charge to the jury, either in the court's charge or requested instructions offered. At times it is a little difficult to determine whether a charge on circumstantial evidence is requisite. It has been held in several cases that, where the facts are in such close juxtaposition to the main fact as in cases of homicide, it is not necessary to give this phase of the law in charge. In this case, however, the court relied upon circumstances to connect the defendant with the homicide. There is no evidence that he was engaged in the killing; in fact, the evidence excludes that idea. His criminality or connection with the killing must be, if at all, gathered from circumstances, in the absence of positive evidence. From this viewpoint the writer believes a charge on circumstantial evidence was necessary. There is another viewpoint, however, in the light of the facts of this case, which seems to call for a charge on this phase of the law. Circumstantial evidence, as a rule, does not apply to criminal intent, but it applies usually to the act or criminal connection with the act charged to be a violation of the law. The mere presence of a party at the scene of the homicide does not make him a criminal. He may have known that a crime was committed, yet if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction nor connect him criminally with the killing. So, from either viewpoint, the charge on circumstantial evidence was called for by the facts. Appellant having...
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Buckley v. State
...was transferred on change of venue to Jasper county, where it was tried. It may be stated this is a companion case to Harvey Davis v. State, reported in 172 S. W. 978. The two convictions grew out of the same transaction. It is deemed unnecessary to go into a detailed statement of the volum......
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Davis v. State
...Appeal from District Court, Jasper County; A. E. Davis, Judge. Harvey Davis was convicted of murder, and he appeals. Affirmed. See, also, 172 S. W. 978. J. T. Adams, of Orange, and Forse & Hamilton, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the HARPER, J. Appellant was......