Gehrke v. State

• Citation: 13 Tex. 568
• Parties: ALBRECHT GEHRKE v. THE STATE.
• Decision Date: 01 January 1855
• Court: Supreme Court of Texas

13 Tex. 568

ALBRECHT GEHRKE

v.THE STATE.

Supreme Court of Texas.

1855.

Appeal from Harris. The appellant was convicted of murder in the first degree, for killing his wife. The evidence showed that they had been married about a year; that the deceased left the prisoner and refused to live with him about two weeks before the killing; that the prisoner being of a weak mind at best, quit work, went about inquiring of persons how he could get her back; that on the day of the killing they were seen passing a certain point in the city, (Houston,) he urging her to consent to something, (witness could not hear what,) and she refusing; about two hundred yards further on, they were observed by other witnesses, she a little in advance; she quickened her pace, he quickened his; she ran, he ran and overtook her; threw her down and struck at her as if he was stabbing her; witness ran up, and saw he was armed with a knife with a blade about four inches long; struck at his breast as if trying to stab himself, but struck with the handle instead of the blade; made off, and ran and jumped into the bayou; was found in the bayou entangled in or holding on to drift-wood; when a rope was thrown to him, took hold of it and was pulled out. The deceased was found mortally wounded, and soon afterwards expired; one wound pierced the pricardium. In answer to a question who did it, she said her husband. The jury found a verdict of guilty of murder in the first degree.

There was a bill of exceptions in the record as follows: Be it remembered, & c., the prisoner offered to show by witnesses (not medical men) that they were conversant with persons well known to be insane, and that the conduct and appearance of the prisoner were like such as they had observed in the said insane; but the court ruled that such testimony was incompetent.

Be it further remembered that the court excluded from consideration of the jury such expressions of the witnesses as that he, prisoner, looked and acted like one insane, in their opinion.

There was a motion in arrest of judgment, on the ground that the indictment did not charge the homicide to have been committed by poison, starving, or torture, or that it was committed in the perpetration, or in the attempt at the perpetration of arson, rape, robbery or burglary, nor that it was committed by premeditated and deliberate killing.

The indictment did not contain the word deliberate, or deliberately. The motion was overruled.

The judge instructed the jury at considerable length; and the prisoner's counsel asked fifteen short instructions, which the judge declined to give, “because many of them were already given, and some of them were inapplicable to the case.” But, as no particular error in respect of either the instructions given or those refused, was urged on the appeal, they are omitted.

A. P. Thompson, for appellant. 1st. The indictment is defective for conviction of murder in the first degree, because the offense is not charged to be both premeditately and deliberately.

2d. The testimony offered on behalf of the prisoner, as specified in the bill of exceptions, was improperly excluded by the court below.

3d. The court below erred in its charge, because the charges argumentative incroaches on the regions of facts and is calculated to mislead the jury.

4th. The charges asked for by the counsel for the prisoner were improperly refused.

5th. The testimony does not justify a verdict of murder in the first degree.

Acts of the fifth legislature, page 72, Hart. Dig., art. 2515; Id., 2405, article 753, amendment fourth legislature, page 19; Starkie's criminal pleading in loco. Roscoe's Criminal Evidence in the report of the judges in reply to the inquiries of the House of Lords upon the law of insanity, especially the opinion of the dissenting judge.

The defendant is not charged to have perpetrated the act “deliberately,” but ““premeditately” only; he must have done it pendente animo et cum animo, characterized simultaneously by both these epithets, or the crime contemplated by the statute is not consummated.

“Premeditately” implies that the accused had before the act contemplated its execution, that he had premeditated upon it; but it does not imply necessarily any mental determination or conclusion; the crime, therefore, contemplated by the statute, could not be consummated if done merely after premeditation; it must appear and it must be charged that it was done ““deliberately,” in pursuance of and in continuation and execution of such “““premeditation.”

He may have premeditated, but abandoned the act. He may have premeditated it at one time, and at a later period perpetrated it upon a sudden impulse--wholly uninduced--unaffected by his previous premeditation. Unless he did ““premeditately” and “deliberately” execute in pursuance of such premeditation, he did not commit murder in the first degree. He is not so charged. He cannot be so adjudged. Under this indictment he cannot be presumed to have deliberately acted. It is not averred. The words differ widely in signification.

Attorney General, for appellee. I. The first point in the assignment of errors is “That the court erred in excluding testimony offered by the prisoner on his trial.” The bill of exceptions upon which this point rests, shows in effect that the court excluded from the jury opinions and expressions indicating opinions of persons not skilled in the matter in regard to the sanity of the prisoner especially in view of the fact that medical men were examined in the case by defendant on other matters, showing that they were acquainted with his condition, but whom the defendant declined, or, at least failed to examine touching his sanity. This ruling of the court is too clearly and elementarily correct to admit of discussion.

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