Green v. State

• Decision Date: 16 February 1889
• Parties: GREEN <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 114

GREEN

v. STATE.

Court of Appeals of Texas.

February 16, 1889.

Appeal from district court, Comanche county; T. H. CONNER, Judge.

The indictment charged that "Mack Green, on or about the 1st day of May, 1888, in the county and state aforesaid, did, with malice aforethought, kill Sam Smith, by shooting him with a gun." Green was convicted, and appeals.

Hamilton & Prester and Lindsey & Hutchinson, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Eleven bills of exception reserved to the rulings at the trial by the appellant appear in the record, nine of which are, to our minds, so fully, completely, and satisfactorily explained by the learned judge in his notes setting forth the attendant facts and circumstances that it would be both a work of supererogation and useless consumption of time to recapitulate and discuss them in our view of those explanations. The tenth and eleventh bills were saved to the overruling of the defendant's motions in arrest of judgment and for a new trial. The first attacked the validity and sufficiency of the indictment, which instrument is in accordance with approved precedents and forms; the latter motion recapitulated all the supposed errors into which the court had fallen during the progress of the trial. Two of these errors, and the ones most urgently insisted upon by the counsel for appellant, are that the court failed and refused to submit murder of the second degree and manslaughter as issues in his charge to the jury. Upon the statement of both defendant and his brother as to how the homicide occurred, and which statements were in evidence, the meeting with deceased was purely accidental, and they were justifiable on the grounds of self-defense. According to the testimony of the state, the homicide was a murder by lying in wait, — an assassination, — and consequently murder of the first degree. These were the only issues in the case in our view of the facts as shown by the record. This was the view taken by the learned trial judge, and, upon the various phases upon which these issues were by the facts required to be submitted, we find his charge a full, clear, and sufficient exposition of the law of the case. We have given the record in this case a most thorough and repeated consideration, and we have found no error for which the judgment should be reversed, and it is therefore affirmed.