Merka v. State

• Decision Date: 04 April 1917
• Docket Number: (No. 4415.)
• Citation: 199 S.W. 1123
• Parties: MERKA v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W. 1123

MERKA v. STATE.

(No. 4415.)

Court of Criminal Appeals of Texas.

April 4, 1917.

On Motion for Rehearing, January 16, 1918.

Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.

John Merka was convicted of murder, and he appeals. Affirmed. On motion for rehearing. Motion overruled.

J. F. Taulbee and A. S. Fisher, both of Georgetown, H. C. Mantor and H. Z. Daril, both of Taylor, and A. S. Fisher, Jr., of Georgetown, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of the murder of W. G. Jones, and his punishment assessed at 20 years in the penitentiary. The facts of the case were established by clear, undisputed, and unimpeached testimony.

Deceased was a man of small stature, 54 years old, and weighed about 125 pounds. He lived with his family at Waterloo, about 5½ miles north of Taylor. Appellant, as most of the witnesses designated him, was a young man. He was a little larger than Jones, and lived at or near Taylor. One witness said he was about 19 years old at the time of the trial, in January, 1917. The day before appellant killed deceased, he went to deceased's place. Mrs. Jones, deceased's widow, swore he was there and she saw him talking to her husband, but did not hear what he was talking about. The next morning about 9 o'clock appellant called up Mrs. Jones over the phone at her home and asked her if deceased was there. She told him he was not, but was in the field pulling corn. He asked, "Is he coming to town?" She replied, "He is coming this afternoon." Appellant said, "I will see him when he comes." Deceased did go to Taylor that evening with a load of cotton seed, reaching there about 3 o'clock in the afternoon of October 28th. About that time he went to see the assistant county attorney in his office. About an hour and a half thereafter he returned to this attorney's office and remained there with the attorney and another witness, Mr. Kettler, about 10 or 15 minutes, and had a conversation with the attorney. He and the attorney with Mr. Kettler then left the attorney's office, which was upstairs over the First National Bank, to go to the office of the justice of the peace, diagonally across two streets in another block, perhaps a little more than a half block distant from the attorney's office. While Mr. Kettler came downstairs with them he stopped on the sidewalk near the corner at said bank.

Just before deceased and Mr. Kettler went up to the attorney's office the second time, deceased and Mr. Kettler were talking on the sidewalk at said bank corner. Appellant came up and spoke to them, saying, "Howdy do." He then said, "I want to see you, Mr. Jones." Jones replied, "I will see you a little bit later." Appellant said, "No, damn it; I want to see you right now." Jones said, "You go on now; I don't want to fool with you." Appellant then walked away from them, and Jones and Kettler at once went up in the attorney's office. Appellant walked down the street about a half block to a store, went in and borrowed an ax handle, which weighed just one pound and a half. He then returned to the bank corner with the ax handle, and waited around there, without doubt, waiting for Mr. Jones to return to the street from the attorney's office. Just after what was said between appellant and Jones just above related and before appellant got the ax handle Mr. John Fojtik, an acquaintance of appellant, approached him, spoke to him, and asked him what was the matter. He cried and said, "He got trouble with Mr. Jones; he got trouble; Mr. Jones is to see me next time." A short time before this Mr. Fojtik saw him across the street from the bank and had some conversation then with him about getting him to take him, the witness, out to Waterloo. At that time appellant said nothing about Mr. Jones. When appellant returned to said bank corner with the ax handle, Mr. Fojtik went to him and spoke to him again, and said to him, "You had better let that trouble alone and get on." But appellant commenced crying, and just said, "John, you go away and let me alone." And the witness walked off from him, and had no more talk with him.

When deceased and the attorney left the office of the latter together going to that of the justice of the peace, they stepped off of the sidewalk at the bank corner and walked side by side until they got about half way across one street. Appellant with his ax handle then stepped off of the sidewalk at the bank corner following Mr. Jones. After getting a few steps he called to Mr. Jones. Mr. Jones partially turned without stopping and said something. No witness could tell what he said. He and the attorney continued going. Appellant continued after Mr. Jones rapidly. Mr. Jones and the attorney proceeded some steps further, without either of them looking back or knowing that appellant was approaching. When he got close enough to Mr. Jones, he raised the ax handle with both hands, and overhanded struck Mr. Jones on the right side of his head, to the rear of about the center of his head, an awful blow, which felled Mr. Jones on the street. The attorney said that the crash of the blow attracted his attention, and he turned and saw Jones as he fell upon the ground, though he did not see the blow struck. After striking Jones this blow and felling him to the ground, one witness said that appellant still held the ax handle in both hands, and gazed at Jones on the ground for a short time. Doubtless seeing he had accomplished his intention of killing him, he struck no more, but walked away. Eyewitnesses, who saw and testified to all this, at once went to and picked Mr. Jones' body up and carried it into one of the stores. Mr. Jones never spoke after appellant struck him. A doctor was immediately summoned and at once had the body removed to his office, where a hurried examination was made, and ascertaining that the wound was a very serious one, had him taken to the sanitarium, where a thorough examination was made of deceased's skull. The doctors testified that they found his skull crushed in by the blow an area about the size of a large egg. The bones were driven into the brain tissue; that the skull was broken in as if you would take an egg and knock it. The doctors dressed the wound, removing therefrom two or three pieces of the broken skull about the size of a half dollar. When they first made this thorough examination, and before these bones were removed, a considerable portion of deceased's brains poured out of the wound. The doctor further testified that while there might be stronger places of the skull than where this blow was struck, it was about the average of the skull; that the skull bones at this point were in two layers—the brain was beneath the second that this blow crushed both layers. Appellant did not testify at all. When the doctor was testifying that the blow with an ax handle would cause the crushing of deceased's skull and his death, appellant admitted that that was the cause of his death. Mr. Jones died a few hours after appellant struck him and crushed his skull.

The court gave a full and apt charge submitting murder alone. He correctly stated the case and told the jury what the offense of murder was in accordance with the statute. He correctly and fully defined malice aforethought.

The appellant complained of the court's refusal to give his special charge as follows:

"That before you can convict the defendant in this case you must find from the evidence and beyond a reasonable doubt that at the time the defendant struck the deceased, if he did strike him, with an ax handle, that the defendant had the specific intent to kill deceased, and if you have a reasonable doubt about the intention of the defendant, you must acquit him."

The judge at the time refused this charge, stating that it was covered by the general charge of the court.

The court in his main charge in one paragraph instructed the jury:

"To warrant a conviction for murder, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the defendant, in the commission of the homicide, was actuated by malice aforethought, and with specific intent to kill."

In two other paragraphs he instructed them:

"What is meant by deadly weapon, whenever used in this charge, is meant a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.

"The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears."

Then, in the next paragraph, submitting the case to the jury for a finding, he instructed:

"Bearing in mind all the instructions given you, if you believe from the evidence in this case beyond a reasonable doubt that the defendant John Merka, in the county of Williamson, state of Texas, on or about the 28th day of October, A. D. 1915, did then and there, unlawfully and with malice aforethought and with intent to kill, and with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, strike one W. G. Jones on the head with an ax handle, and thereby killed the said W. G. Jones, as charged in the indictment, you will find the defendant guilty of murder as charged, and assess his punishment at death, or by confinement in the penitentiary for life or for any term of years not less than five, as the jury may determine and state in their verdict. And unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then they will acquit the defendant and say by their verdict, `Not guilty.'"

In addition, in a separate paragraph, the court told the jury:

"In all criminal cases the burden of proof is on the state. The defendant is presumed to be...