Egbert v. State

Decision Date21 April 1915
Docket Number(No. 3515.)
Citation176 S.W. 560
PartiesEGBERT v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Jack Egbert was convicted of manslaughter, and he appeals. Affirmed.

Farrar & McRae, of Waxahachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary.

The evidence would show that appellant and Bob Craven were employed by Ellis county as guards of the county convicts. On the day of the homicide they were taking some 30 convicts from the county farm to the farm of Mr. Charles Davis. Mr. Craven was in advance of the convicts and appellant was in the rear of them. When near Davis' gin some 5 of the convicts made a break for liberty. Shots were fired by both appellant and Craven, and one of the escaping convicts, Leslie De Walt, was killed. The doctor, who examined the body of the dead man, says:

"The cause of his (deceased's) death was hemorrhage from a gunshot wound, as I saw it. I looked at his wounds; do not know how many there were, but they were in his back; could not say how many there were. My best recollection is that there were eight or ten wounds. There was one right here (indicated) even down on his hips, there was one or two on his hips, as I remember, and there was one that just cut right across his shoulder here (indicated), and they were all over his back — scattered around over his back."

The first contention made by appellant is that the court erred in failing to charge on circumstantial evidence, and in failing to give his special charge presenting that issue.

It has always been the rule in this state that, if there is direct testimony of the main fact to be proved (in this case that appellant fired the shot that killed deceased), a charge on circumstantial evidence is not required. Tooney v. State, 8 Tex. App. 462; Buntain v. State, 15 Tex. App. 520; Hunnicut v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

And where an act has been testified to by direct evidence a charge on circumstantial evidence is not required, because the intent with which the act was committed is sought to be established by circumstances. Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

Again, if the facts proven are in such close juxtaposition to the factum probandum as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Smith v. State, 90 S. W. 638; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Adams v. State, 34 Tex. Cr. R. 471, 31 S. W. 372; Holt v. State, 9 Tex. App. 582; Montgomery v. State, 55 Tex. Cr. R. 502, 116 S. W. 1160; Wheeler v. State, 15 Tex. App. 612.

We have cited these general propositions of law (which have always prevailed in this state), and will now apply them to the evidence in this case.

E. A. Talbert, one of the convicts, testified that deceased and he were "chums or partners"; that they had been sent to the county farm for unlawfully riding trains; that in going from the county farm to the Davis farm that he and deceased were about the center of the convicts; that the convicts who attempted to escape threw their cotton sacks towards the rear and ran; that they ran up near the gin, and when they got about the middle of the seedhouse the shot was fired and he saw De Walt fall; that Capt. Jack (appellant) fired that shot.

Appellant's able counsel ingeniously argue that this is shown to be but an opinion of the witness, taking into consideration his position, etc., but we take it that it is positive testimony that appellant fired the shot that killed deceased. It may be that other testimony in the record would authorize the jury to disregard it (but apparently they did not do so), but we are only discussing at this time whether or not the court committed error in failing to charge on circumstantial evidence, and, in our opinion, with this evidence in the record, no such charge was called for or required. Again, the testimony of all the witnesses show that appellant was in the rear of the convicts and Craven was in front of the convicts, and these two men alone fired shots on that occasion; that deceased was shot in the back, and it would be difficult for a man in front to have fired the shot that hit De Walt in the back, when he was in front of him. The testimony showing that appellant was in the rear, Craven in front, and the shot struck the deceased in the back, both shooting, the facts would be about equivalent to positive testimony that appellant fired the shot that killed deceased, if the testimony of Talbert was not in the record, and under the authorities above quoted this assignment presents no error.

The next proposition insisted on by appellant is that, while appellant testified that he fired a shot, he did not intend to kill anyone, and he did not know whether or not he hit any one or not; that he did not know whether or not he shot De Walt or Craven shot him. He also testified that he thought the gun was loaded with No. 4 shot, and not buckshot, and the court should have instructed the jury:

"You are further instructed that our law provides that, if a person laboring under a mistake as to a particular fact shall do an act which would be otherwise criminal, he is guilty of no offense; such mistake being such that the person so acting under the mistake would have been excusable had his conjecture as to the fact been correct, and the mistake did not arise from a want of proper care on the part of the person committing the offense. Therefore, if you should believe from the evidence beyond a reasonable doubt that the defendant fired the shot that killed Leslie De Walt, and that the death of said De Walt, was caused by his gun being loaded with shot larger than No. 4, and his death would not have been a probable consequence had he been shot under the circumstances had said gun been loaded with No. 4 shot, and if you further believe that the defendant believed his gun was loaded with No. 4 shot, and its being loaded with larger shot than No. 4 shot was a mistake as to him, and such mistake did not arise from a want of proper care on his part, and that, laboring under such mistake, the defendant fired his gun with no specific intent to hit any one, or only to alarm the prisoners who were escaping, if such was the case, and he did so fire his gun, and under such circumstances killed Leslie De Walt, then such killing would be excused on account of such mistake of fact, and you will acquit the defendant; and, if you have a reasonable doubt of defendant's guilt hereunder, you will give him the benefit of such doubt and acquit him."

The question arises: If appellant's gun had, in fact, been loaded with No. 4 shot, and such shot in the gun he was using would not have killed deceased at the distance he was from appellant, yet the shot struck deceased, would appellant be guilty of any character of offense, even though in firing the shot he had no intent to kill? If he would have been guilty of any character of offense, the court properly refused the charge. If, as a matter of law, one shoots a gun, with no intent to kill, loaded in a manner he did not believe he could kill, yet also knowing that it was loaded with a character of shot that would inflict injury, would he be entitled to be acquitted of any and all character of offenses? We do not think so, and the court, we think, properly held that under such circumstances he would be...

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24 cases
  • Stiles v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 26, 1975
    ...was recently noted in Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972). It was there said: 'As stated in Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560, 563 (1915) '. . . negligent homicide is based wholly upon the theory that the evidence must show that there was not intent to kill by a......
  • Palafox v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 19, 1972
    ...homicide. 2 We cannot agree that the evidence would support the submission of such charges. As stated in Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560 (Tex.Cr.App.1915): '. . . negligent homicide is based wholly upon the theory that the evidence must show there was no intent to kill by an......
  • McPeak v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 21, 1916
    ...Cr. R. 175, 141 S. W. 966; McCray v. State, 63 Tex. Cr. R. 522, 140 S. W. 442; Chant v. State, 73 Tex. Cr. R. 345, 166 S. W. 513; Egbert v. State, 176 S. W. 560; Windham v. State, 173 S. W. 661; Williams v. State, 45 Tex. Cr. R. 218, 75 S. W. 859; Miller v. State, 52 Tex. Cr. R. 72, 105 S. ......
  • Bailey v. State, 22720.
    • United States
    • Texas Court of Criminal Appeals
    • January 19, 1944
    ...in question was to be inferred from the facts proven. This would not make it a case of circumstantial evidence. See Egbert v. State, 76 Tex.Cr. R. 663, 176 S.W. 560; 24 Tex.Jur. p. 590, sec. 102. However, in the event the jury disregarded the confession, a charge on circumstantial evidence ......
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