Herrera v. State

• Decision Date: 04 November 1914
• Docket Number: (No. 3306.)
• Citation: 170 S.W. 719
• Parties: HERRERA v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 719

HERRERA v. STATE.

(No. 3306.)

Court of Criminal Appeals of Texas.

November 4, 1914.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Augustine Herrera was convicted of murder, and appeals. Reversed and remanded.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted for murder, and his punishment assessed at imprisonment in the penitentiary for life.

The state's evidence would have the killing take place under the following circumstances: Mattie Dyson testified that Alonzo Watkins drove up in an automobile, got out, and went into a chophouse, leaving his overcoat in the automobile; that a Mexican approached the automobile and took out the overcoat, starting off with it. Just at this time Watkins came out, and she informed him that a Mexican had taken his overcoat out of the automobile, and pointed out the Mexican. Watkins walked up to the Mexican and asked: "Whose coat is that you have got?" the Mexican replying, "It is mine;" when Watkins said, "I beg your pardon, it is mine;" and then the Mexican handed the coat to Watkins. She identifies appellant as this Mexican. The state's testimony then shows that the deceased, an officer in citizen's clothing, then stepped up and placed his hand on the Mexican's shoulder, who shot and killed the officer.

Defendant, by the testimony offered in his behalf, would deny that he was this Mexican, and undertook to prove an alibi by showing that he was in Austin at or about this time. He then offered testimony that the killing took place under the following circumstances, whoever killed the officer: Watkins testifies, as the Mexican handed him the coat, the officer stepped up and struck the Mexican in the face and he staggered back; that the officer continued to strike him, striking him several blows, when the Mexican pulled the pistol and shot. The evidence further shows that the Mexican who did the killing was a small, slender man, weighing about 130 pounds, while the policeman was a "large man, well built, and a powerful man, weighing from 170 to 180 pounds, and was a very strong man."

The offense is proven to have been committed March 29, 1913. The law defining the offense murder so as to embrace a killing both upon express and implied malice, and repealing the statutes dividing murder into the first and second degree — first degree upon express malice, and second degree upon implied malice — was not approved until April 3, 1913, and did not go into effect until July 1, 1913. Therefore appellant was entitled to have the jury instructed the law as it existed at the time of the killing. The court did not define express malice and implied malice, nor instruct the jury that a killing upon implied malice was punishable only by imprisonment in the penitentiary for any term of years not less than five. Appellant presented to the court a special charge requesting him to so instruct the jury, which charge was by the court refused. In this the court erred.

In the record there is what is...