Edmondson v. State

• Decision Date: 01 January 1874
• Parties: LUKE EDMONDSON v. THE STATE.
• Court: Texas Supreme Court

41 Tex. 496

LUKE EDMONDSON

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Lamar. Tried below before the Hon. John C. Easton.

Johnson & Miner, for appellant.

George Clark, Attorney General, for the State.

GOULD, ASSOCIATE JUSTICE.

Omitting the caption and formal recitation, the indictment in this case is as follows:

“That on the first day of June, A. D. 1872, in the county of Lamar, in said State of Texas, with force and arms, one Luke Edmondson, in and upon Julia Edmondson, a child, (one unintelligible word appears here that I am not able to make out.--Clerk,) willfully and of his express malice aforethought, did make an assault on the said Julia Edmondson with a certain stick, had and held in his right hand, her, the said Julia Edmondson, unlawfully beat, bruise, and wound; and the said Luke Edmondson her, the said Julia Edmondson, willfully, feloniously, and of his express malice aforethought, then and there cruelly and unmercifully did chain with chains, and did tie with ropes, and, so chained and tied, did compel her to work and labor beyond her strength; and, so chained and tied, did expose her, the said Julia Edmondson, to the fierce rays of the sun at noon-day in the middle of summer, and the piercing winds of mid-winter, until finally, by means of said cruelty and barbarity, the said Julia Edmondson, child as aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Luke Edmondson the said Julia Edmondson, in manner and form aforesaid, feloniously, willfully, and of his express malice aforesaid, did kill and murder, contrary,” &c.

Under this indictment, the defendant being on trial, the court instructed the jury that the defendant was “guilty of murder in the first degree, or he was not guilty of any degree of homicide.” The verdict was guilty of murder in the first degree, the punishment being fixed at imprisonment for life.

The record embodies three bills of exceptions to the rulings of the court in admitting evidence; sundry charges asked and refused; a motion for a new trial; and a motion in arrest of judgment, by which last the sufficiency of the indictment is fairly presented for examination.

We think the indictment wholly defective, first, because it does not show when Julia Edmondson died. It is essential that it should appear from the indictment that death happened within a year and a day after the injuries were inflicted. (Wharton Am. Cr. Law, sec. 1073; 1 Russ. on Crimes, 504; 4 Blackburn, 197.)

The indictment is also defective because it does not, with sufficient certainty, charge that death was the reason of the injuries alleged to have been inflicted by defendant. It alleges that deceased died “of said cruelty and barbarity;” but these words are then, for the first time, used in the indictment, and the precedents which we have examined do not justify such looseness of averment.

In addition to these defects, which were of themselves fatal, the averment, as to injuries inflicted with a stick, not only lacks the proper specification of time and place, but omits the word “did” in a connection where it was material--an omission which has been repeatedly held good ground for quashing an indictment. (State v. Hutchinson, 26 Tex., 112;State v. Daugherty, 30 Tex., 360.)

We also think it was error in the court to instruct the jury, in substance, that they must find defendant guilty of murder in the first degree or acquit him. Assuredly this was erroneous, if by any possible legitimate construction of the evidence the jury might have found defendant guilty of murder in the second degree. The statute distinguishes between the degrees of murder as follows: “All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery, or burglary, is murder in the first degree, and all murder not of the first degree is murder of the second degree.” (Pas. Dig., art. 2267.) There is no evidence that justifies the assumption, as a fact established, that the deceased died by starving or torture, and there is no evidence whatever that brings the act within the other specified cases of...