M'Connell v. State

• Decision Date: 17 November 1886
• Citation: 3 S.W. 699
• Court: Texas Court of Appeals
• Parties: McCONNELL <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 699

McCONNELLv.

STATE.¹

Court of Appeals of Texas.

November 17, 1886.

Appeal from district court, Parker county.

The verdict in this case found the appellant guilty of manslaughter, and awarded him a term of four years in the penitentiary, under an indictment for murder, the charging part of which reads as follows, the words eliminated by this court being in italics: "* * * That one Eli McConnell, late of said county, on, to-wit, the fifteenth (15th) day of November, A. D. 1882, in said county of Parker and state of Texas, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought, contriving and intending one Viola Hunt McConnell to deprive of her life, did then and there with force and arms make an assault upon the body of the said Viola Hunt McConnell, and a certain pistol, the same being a deadly weapon, which he, the said Eli McConnell, in his hands then and there had and held, which said pistol, as aforesaid, was charged with gunpowder and leaden bullets, he, the said Eli McConnell, did then and there discharge and shoot off to, at, and against her, the said Viola Hunt McConnell, a female child in being within the state of Texas aforesaid, feloniously, willfully, and of his, the said Eli McConnell's, express malice aforethought, inflict one mortal wound in and upon the head of her, the said Viola Hunt McConnell, of which said mortal wound she, the said Viola Hunt McConnell, then and there died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Eli McConnell, in manner and form aforesaid, feloniously, willfully, and of his express malice aforethought, did kill and murder the said Viola Hunt McConnell, contrary to the law, and against the peace and dignity of the state."

The testimony for the state discloses substantially the following facts: The defendant, his wife and children, lived in the town of Weatherford. His father and family lived in the country some miles distant. Domestic trouble arose between the defendant and his wife as the result of discoveries made by defendant exciting his suspicion of her conjugal fidelity. Resulting quarrels terminated in their agreement to go to the house of defendant's father, for the purpose of consultation and settlement. Defendant, his wife, and an infant left Weatherford in a buggy on the evening of November 15, 1882. The defendant, who was then under the influence of whisky, took a small flask of the liquor with him. Over the protest of his wife, and parties at his house when he left, he also took his pistol. At a point on the road near the house of one of the witnesses, a lady's hat was seen to fall from the buggy. The buggy stopped a few yards on the road from where the hat fell out, and the defendant got out of the buggy, and started back after the hat. Defendant had not reached the hat, when Mrs. McConnell plied the whip to the horses, and started them full speed up the road. Defendant turned and ran on foot in pursuit of the buggy. He was but a short distance behind, and to the side of the buggy, when they passed beyond the view of the witnesses. A few minutes later several reports of a pistol fired in the direction pursued by the buggy and defendant were heard. Some hours later, the buggy passed back over the same route going towards Weatherford. Defendant and his wife arrived at defendant's father's house about dusk. The infant was passed from the buggy dead. Defendant explained that he accidentally overturned his buggy in a creek, and that the child was killed by falling head first on a stone. The infant was buried next day. Defendant and his wife returned to their home on the evening of the day of the funeral, and the defendant, in the presence and hearing of his wife, explained to the lady he left in charge of his house that his child was killed by the accidental overturning of the buggy in the creek. A week or two later the body of the child was exhumed, and the cause of its death ascertained to be a gunshot through the head. The testimony for the defense tended to present the theory that the defendant was exasperated by his wife, who threw her hat out of the buggy in order to get him out of it, and then fled from him, and that he fired at the horses, designing to disable one of them, and thereby stop the flight of his wife. Defendant's parents testified that, upon the arrival at their house of the defendant and his wife, the wife explained that the defendant struck at her with his pistol, missed her, and struck the child, then in her arms, on the head, and accidently killed it, the hammer of the pistol penetrating the child's brain.

Hood, Lanham & Stephens, for appellant, maintaining the doctrine announced in the last head-note of this report, and controverting the others.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

Motions were made by defendant both to quash and in arrest of judgment for supposed fatal defects in the indictment. There is no question but that the indictment is inartistic, and in some unnecessary averments rather confusing. With regard to pleading in a criminal case, it is well settled that if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good, in substance, under our Code. Coleman v. State, 2 Tex. App. 512; Burke v. State, 5 Tex. App. 74; Mayo v. State, 7 Tex. App. 342; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275. Now, eliminating as far as we can all mere verbiage, confused matter, and surplusage from the indictment in this case, it reads as follows, (omitting formal portions:) That the accused, "late of said county, on, to-wit, the fifteenth (15th) day of November, A. D. one thousand eight hundred and eighty-two, in said county of Parkar, state of Texas, * * * and of his malice aforethought, contriving and intending one Viola Hunt McConnell to deprive of her life, did then and there with force and arms make an assault upon the body of the said Viola Hunt McConnell, and a certain pistol, the same being a deadly weapon, which he, the said Eli McConnell, in his hands then and there had and held, which said pistol as aforesaid was charged with gunpowder and leaden bullets, he, the said Eli McConnell, did then and there discharge and shoot off to, at, and against her, the said Viola Hunt McConnell. * * * And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Eli McConnell, in manner and form aforesaid, feloniously, willfully, and of his express malice aforethought, did kill and murder the said Viola Hunt McConnell, contrary to law, and against the peace and dignity of the state." In our opinion, it is evident that the indictment, thus eliminated, sufficiently, fully, and explicitly charges murder of the first degree. See Willson, Crim. Forms, form 388, p. 173. The motions to quash and in arrest were properly overruled.

Bills of exception 1 and 2 were taken to the action of the court in permitting the prosecution, over objections of defendant, "to prove by four witnesses the same harrowing facts attending the exhuming of the deceased child's body, and to permit the county attorney in his closing address to the jury to abuse the defendant for making his...