McKinney v. State

• Decision Date: 14 June 1905
• Parties: McKINNEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1012

88 S.W. 1012

McKINNEY v. STATE.

Court of Criminal Appeals of Texas.

June 14, 1905.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Will McKinney was convicted of assault to murder, and appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of assault to murder, and, being under 14 years of age, his punishment was fixed at confinement in the state reformatory and house of correction for a term of five years. The testimony shows substantially that A. Thomas, the assaulted party, a vender of fruits and chile, was shot by appellant, who was accompanied by Marvin Rhodes at the time of the shooting; Rhodes being a small boy. Prosecutor at the time of the shooting was in bed at his place of business. The shooting occurred between 5 and 6 o'clock in the morning. Prosecutor testified that upon hearing a noise at the door he partly opened it, and a shot was fired, wounding him. The state's testimony shows that the wound was inflicted with a 22-caliber target rifle. The state introduced appellant's confession. However, in this confession appellant states that his companion, Marvin Rhodes, did the shooting; that he and Marvin had agreed to shoot the old man (prosecutor) because he had sold them some chile the day before of an inferior grade. The state introduced Marvin Rhodes, and he testified that appellant did the shooting. The first bill of exceptions relates to the refusal of the court to instruct the jury peremptorily to find a verdict of not guilty. We do not think there was any error in this, since both the confession of appellant and the testimony of the accomplice, with the other evidence in the case, support the verdict of the jury.

Bill of exceptions No. 2 shows that, after the jury had retired to consider their verdict, they propounded to the court the following question: "The jury desires to hear the testimony of W. S. Russell read to them. W. W. Parks, Foreman." The court informed the jury in writing that under the law they could not have the testimony read to them; but, if there was any disagreement among them as to the testimony of any of the witnesses, they could request the court to have the witness brought back on the stand and have him detail that part of the testimony about which the jury disagreed. This instruction was clearly correct, under article 734, §§ 875-877, White's Ann. Code Cr. Proc.; Conn v. State, 11 Tex. App. 390.

Bills 3 and 5 relate to the action of the court permitting the witness Russell to be recalled at the instance of the jury and again detail his testimony. In this there was no error. White's Ann. Code Cr. Proc. art. 735.

Bill No. 6 shows that the state was permitted to prove by Sheriff Russell and Bud Roberts, city marshal, that in their opinion appellant had sufficient mental capacity to know it was wrong to attempt to kill prosecutor. Appended to the bill is this explanation: "That at the time the question was asked with reference to the mental capacity of defendant the court was of the opinion that the evidence as to defendant's age made an issue as to whether defendant was under the age of 13 years when it was alleged he committed the offense, but after investigation of the record the court became satisfied no such issue was raised and then withdrew the testimony." The record before us shows that defendant was 13 years of age. We see no reason for holding that this testimony, and especially its subsequent exclusion, could have injured appellant. The mere admission of the testimony would indicate some doubt as to the mental condition of appellant, and to that extent redounded to his benefit.

Appellant complains of the following portion of the court's charge: "You are further instructed that, where the state puts a confession in evidence, the whole of said...