Mercer v. State

• Decision Date: 23 June 1928
• Docket Number: (No. 11728.)
• Citation: 13 S.W.2d 689
• Parties: MERCER v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 689

MERCER v. STATE.

(No. 11728.)

Court of Criminal Appeals of Texas.

June 23, 1928.

Rehearing Denied February 20, 1929.

Commissioners' Decision.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Olin Mercer was convicted of murder, and he appeals. Affirmed.

Will Hancock, Farrar & Wilson, and Lem Wray, all of Waxahachie, and McLean, Scott & Sayers, of Fort Worth, for appellant.

A. D. Emerson, Co. Atty., of Waxahachie, Henry Tirey, Special Prosecutor, of Dallas, John H. Sharp, Special Prosecutor, of Ennis, Frank B. Tirey, Special Prosecutor, of Waco, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 35 years.

Appellant contends that the caption of chapter 274, Gen. & Sp. Acts of the Fortieth Legislature, defining murder and repealing the law of manslaughter, is insufficient, in that no reference is made therein to section 3-a of said act. Section 3-a of said act requires the court to define malice aforethought and apply such term by appropriate charge to the facts in the case, and further instructs the jury that, unless under the facts and circumstances in evidence the jury believe that the defendant was prompted and acted with malice aforethought, they cannot assess his punishment at a period longer than five years. The caption of said act provides:

"An act amending Articles 1256 and 1257 of the Penal Code of 1925, so as to properly define murder, and fixing the punishment for murder; inserting in the Penal Code a new article numbered 1257-a relating to what may be proved, and considered by the jury, in determining the punishment to be assessed for murder; repealing Chapter 15 of Title 15 of the Penal Code of 1925, relating to manslaughter, and all other laws in conflict with this act, repealing Chapter 18 of Title 15 of the Penal Code of 1925; and declaring an emergency."

The Fortieth Legislature at its first called session re-enacted section 3-a under a caption as follows:

"An act amending Section 3-a of Chapter 274 of the general laws of the Regular Session of the 40th Legislature, so as to insert therein a saving clause in reference to offenses committed before said act takes effect so that Section 3-a as amended shall read as follows: `Section 3-a. In all cases tried under the provisions of this act, it shall be the duty of the court to define "malice aforethought" and shall apply that term by appropriate charge of the facts in the case and shall instruct the jury that unless from all the facts and circumstances in evidence the jury believes the defendant was prompted and acted with his malice aforethought, they cannot assess the punishment at a period longer than five years; provided, however, that no offense committed prior to the taking effect of Chapter 274 of the general laws of the 40th Legislature' so in force `shall be affected thereby, whether an indictment has been returned or not, but in every such case the offender may be proceeded against and punished under the law as it existed prior to the taking effect of said act, the same as if said act had not been passed.' And declaring an emergency."

See chapter 8, Acts of the Fortieth Legislature at its first called session.

Section 35 of article 3 of the Constitution of Texas provides:

"No bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an Act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed."

A liberal construction will be applied in determining whether or not a statute violates this section, and, where the provisions are germane in any degree, the law will be upheld. Davis v. State, 88 Tex. Cr. R. 183, 225 S. W. 532. Under the express provisions of article 3, § 35, of the Constitution, an act containing matters not included within the caption is void only as to the extraneous provisions, provided such extraneous provisions are separable from the others. Davis v. State, supra. The word "subject" in the constitutional provision above quoted is used in the same sense as the word "object" in former Constitutions. Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376. The word "object" under former Constitutions was construed by the courts to mean "end or purpose." Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; Breen v. Railway Co., 44 Tex. 302; Stone v. Brown, 54 Tex. 331; State v. McCracken, 42 Tex. 384; Houston & T. C. R. Co. v. Odum, 53 Tex. 344; International & G. N. R. Co. v. Smith County, 54 Tex. 1. It appears to have been the object and purpose of the statute in question to repeal the law of manslaughter and thus avoid the necessity of complicated and confusing charges on the subject, and to further redefine the law of murder. We think the general object of the law is fairly indicated by its caption. It does not appear that any incongruous legislation is embodied in the act. Section 3-a, although not specifically mentioned in the caption of the bill, falls fairly within the general object, and, in our opinion, should be considered by fair intendment as necessarily and properly connected therewith. Where a law has but one general object, which is fairly indicated by its title and can be considered by fair intendment as necessarily and properly connected therewith, the generality of the title is not objectionable, if not made a cover to incongruous legislation; the provisions of the act being liberally construed to avoid serious embarrassment of legislation. Stuard v. Thompson (Tex. Civ. App.) 251 S. W. 277. In any event, section 3-a was later re-enacted under a caption whose sufficiency has not been questioned. Section 3-a seems to be separable from the other provisions of the act in question. If the caption of chapter 274, supra, should be held insufficient in the respect mentioned, which is not conceded, still, under the express language of the constitutional provision, the act would be void only as to said section 3-a, and the Legislature having re-enacted said section at length under a sufficient caption, the entire act under which appellant was tried is not now subject to the criticism he makes.

Appellant further contends that the act is unconstitutional because of uncertainty, lack of clearness, and conflict in its terms. Appellant's contention has been passed on adversely in Crutchfield v. State, opinion No. 11418 (Tex. Cr. App.) 10 S.W.(2d) 119, delivered June 6, 1928.

By timely exception complaint was made of the failure of the court to apply a definition of malice aforethought to the facts. The court instructed the jury, in substance, that, if they had a reasonable doubt from all of the facts and circumstances in evidence that appellant acted with malice aforethought, they could not assess his punishment at a longer period than five years. This was a sufficient application of the law to the facts. Crutchfield v. State, supra.

We have carefully considered all of appellant's objections to the court's charge. We note that practically all of the numerous special charges requested by appellant were given. The main charge and special charges considered together appear to have fairly presented the law of the case, and we find no error which in our opinion was prejudicial to the rights of appellant.

According to the state's theory, appellant, having seen deceased enter the post office in the town of Maypearl, drove to the post office, took a shotgun from his car, and fired several shots at deceased. It was further the state's theory that, when deceased left the building from the rear in an endeavor to get away from appellant, appellant returned to his car, reloaded his shotgun, and again sought deceased for the purpose of killing him; that deceased hid behind a barrel at the rear of a building; that, finding deceased, appellant shot him with a shotgun, struck him over the head with the gun, and finally shot him with a pistol. The state's theory is amply supported by the evidence. Deceased was armed with a pistol at the time. The day before the homicide appellant and deceased had had a difficulty, and deceased had drawn a pistol on appellant. On other occasions deceased and his cousin, Grover Tirey, had made attacks on appellant. Appellant had married the divorced wife of Tirey, and there was evidence of ill feeling between Tirey and appellant. It was appellant's theory, given support in the evidence, that deceased had aligned himself with Tirey, had threatened to kill him, and was endeavoring to execute the threat on the occasion of the homicide. Appellant testified that deceased fired at him from the post office; that he was not seeking deceased when he went to the point where deceased was barricaded behind a barrel; that deceased began shooting at him from behind the barrel; that he killed deceased because deceased was seeking to kill him. We deem it unnecessary to recite the evidence in detail.

Bill of exception No. 1 reveals that a witness for the state testified over the objection of appellant, in substance, that, after the first difficulty in the post office, deceased came out of the back door limping, although walking at a fast gait, and that he told deceased that he had better get out of the way.

Appellant objected to this testimony, "for the reason that it was not shown that the defendant knew of the conversation, advice, and warning said witness gave deceased at the time, and defendant did not know that deceased was crippled, and did not know that deceased was retreating or trying to get out of the way at the time; and further, because the evidence shows that the defendant did not know of any of these conversations, conditions or intentions of deceased and the same are harmful and prejudicial to de...