Henderson v. State

• Decision Date: 24 April 1901
• Parties: HENDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

62 S.W. 752

HENDERSON v. STATE.

Court of Criminal Appeals of Texas.

April 24, 1901.

Appeal from district court, Harris county; A. C. Allen, Judge.

Dan Henderson was convicted of murder, and he appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary. The record does not contain a statement of the facts. The only question raised by appellant necessary to be considered is presented by bill of exceptions No. 1, as follows: "Upon the trial of the above numbered and entitled cause, as soon as the court had read and delivered his charge in writing to the jury, the defendant objected and excepted to said charge because said charge failed and omitted to charge the jury distinctly upon all the law of the case as demanded by the evidence, in this, to wit: That said evidence raised the issue of and called for a charge upon manslaughter, as it appeared therefrom that five men went to the house of Henry Jefferson, deceased, to whip him, because he was lazy, and begged around the camp, and would not work; that they did whip him with a strap, one Charles Harris administering the blows; and that there was nothing in the evidence to show malice, either express or implied, or an intention to kill Henry Jefferson, or inflict serious bodily injury upon him other than a whipping; and that there was no evidence calling for a charge upon murder in the second degree. And defendant now tenders this, his bill of exceptions, * * * which is allowed with the explanation: That the evidence showed that the matter of whipping deceased had been previously discussed on more than one occasion, and that when they went to carry out the plan they went to deceased's house, took him out, dragged him quite a distance (fifty yards or more); that deceased hugged a tree to try and prevent their carrying him away; and that the assailants succeeded in getting deceased to the spot where it was intended to whip him; and that, arriving there, they deliberately whipped him, administering one hundred lashes; and that while it was being done deceased begged for mercy. The court thought that this evidence repelled an idea of sudden impulse; and the court thought, under the article in the statute on this subject, murder in the second degree was the issue in this case. It was shown that the whipping was done with a strap about three feet long, half...