Lewis v. State

• Decision Date: 25 June 1924
• Docket Number: (No. 8110.)
• Citation: 265 S.W. 709
• Parties: LEWIS v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 709

LEWIS v. STATE.

(No. 8110.)

Court of Criminal Appeals of Texas.

June 25, 1924.

Rehearing Denied November 12, 1924.

Appeal from District Court, Guadalupe County; Lester Holt, Judge.

Monroe Lewis was convicted of murder, and he appeals. Affirmed.

Wurzbach, Wirtz & Weinert and Dibrell & Mosheim, all of Seguin, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 15 years.

This is the second appeal. A recital of the facts will be found in the report of the former case. 89 Tex. Cr. R. 345, 231 S. W. 113.

Immediately following the several paragraphs of the charge submitting to the jury the offense of murder, the court instructed the jury that if in their minds there was a reasonable doubt as to the appellant's guilt of murder, he should be acquitted of that offense, and they might then determine whether or not he was guilty of the offense of manslaughter. Following this is a charge on manslaughter, which is criticized as shifting the burden of proof. The question raised and the charge in question are not different from that presented in Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Moore v. State, 88 Tex. Cr. R. 630, 228 S. W. 218; Alley v. State, 92 Tex. Cr. R. 196, 241 S. W. 1024.

In the encounter in which the homicide took place, the son of the deceased was wounded by the appellant. It was the appellant's claim that he was assaulted by both; that the injuries inflicted were in his own defense. That part of the transaction in which the son of the deceased was wounded seems inseparably interwoven with the other facts immediately surrounding the homicide. The wounding of the son was necessarily revealed in developing the case. We are not in accord with the view urged by the appellant that this fact should have been singled out by an instruction by the court that the prosecution was not for wounding the son and that that part of the testimony could not be considered. We understand that there is a general rule against singling out and instructing the jury upon isolated facts. See Vernon's Tex. Crim. Stat. vol. 2, p. 479, note 125; also, page 495, note 15; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583; Hahn v. State, 73 Tex. Cr. R. 409, 165 S. W. 218; Gillespie v. State, 73 Tex. Cr. R. 585, 166 S. W. 135.

It seems that in arguing the case, the attorney for the private prosecution stated to the jury that the witness Ewart Mathews was shot in the back by the appellant and made a cripple for life. This argument was made the subject of objection. The facts stated were part of the res gestæ. In our judgment, the comment upon it did not exceed the limits of legitimate argument, nor was its making so fraught with injury that, when considered in connection with the verdict and record, it would demand that the conviction be annulled. In stating to the jury the facts embraced in the argument, counsel apparently added nothing to that of which the jury was aware through the legal introduction of testimony Ordinarily,...