Miller v. State

• Decision Date: 09 March 1910
• Citation: 126 S.W. 864
• Court: Texas Court of Criminal Appeals
• Parties: MILLER v. STATE.

Page 864

126 S.W. 864

MILLER v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1910.

Rehearing Denied April 6, 1910.

Appeal from District Court, Donley County; J. N. Browning, Judge.

G. R. Miller was convicted of murder in the first degree, and he appeals. Affirmed.

A. T. Cole and A. L. Journeay, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant has appealed from a conviction for murder in the first degree, with the death penalty assessed. At the October term, 1909, the grand jury returned into the district court of Donley county a bill of indictment charging appellant with the murder of one Floyd Autrey by shooting him with a pistol. At the same term of the court appellant was brought to trial, and when brought to trial pleaded guilty to murder, and upon this plea being received and entered, and the evidence being introduced on the trial of the case, the court directed the jury to find the appellant guilty of murder in the first degree and assess his penalty at either death or confinement in the penitentiary for life. The jury returned a verdict with the death penalty. The judgment recites that said plea was accepted after the court had admonished the defendant of the consequences of said plea, and that it was plainly made to appear to the court that the said Miller was sane, and that he was not influenced in making said plea by any consideration of fear, or any persuasion or delusive hope of pardon, prompting him to confess his guilt, and that the jury, after having had the indictment read, and heard the plea thereto, and all the evidence submitted, and the argument of counsel, and the charge of the court, retired to consider of their verdict, and brought in a verdict finding the defendant guilty of murder in the first degree, and assessed the penalty at death.

There is but one question presented in this case for consideration by this court, and it involves two propositions: First, did the court err in not submitting the issue of murder in the second degree to the jury? And, second, did the court err in not defining to the jury the elements that constitute murder in the first degree? On the trial of the case the evidence showed that the deceased and his companion, Fred Garrett, were traveling west over the Ft. Worth & Denver Railroad in March, 1909, and when they got to the town of Childress they got in a box car to travel, evidently intending to avoid paying their fare. When they got to Memphis the appellant got in the car, and after the train started they engaged the appellant in a conversation. The appellant said his reason for getting in the car was that he did not have any money to pay his fare, when the deceased spoke up and said they had a little money, and that they would see that he did not get put off. They sat down and talked together awhile, smoked cigarettes, and one of them played a harp. When they got close to the town of Giles, the appellant fired at the deceased and killed him, and then turned and fired upon the witness, who jumped out of the car. The train had about come to a stop, and the witness Garrett then ran towards the engine, saw a brakeman, and got him to come back. When they got back to the car the appellant was gone, and the deceased was lying on his face, with his pockets turned wrong side out. The appellant was arrested the next day, when he admitted that he had killed the deceased, and that his purpose was robbery.

Our Penal Code—art. 710 (605)—provides as follows: "Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being within this state, with malice aforethought, either express or implied, shall be deemed guilty of murder," etc. Article 711 (606) says: "All murder committed * * * with express malice, or committed in the perpetration, or in the attempt at the perpetration of * * * robbery, * * * is murder in the first degree and all murder not of the first degree is murder of the second degree." It may here be stated that there is not a particle of testimony, nor is suspicion thrown upon the evidence, from which it could be suggested but that the killing was in the perpetration of robbery. There is no issue but what appellant was admonished upon the trial of the case of the consequences of his plea. There is no issue but what the testimony shows that he was sane at the trial of the case and at the commission of the offense. Article 554, White's Ann. Code Cr. Proc., provides: "If the defendant plead guilty he shall be admonished by the court of the consequence; and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear by any persuasion or delusive hope of pardon prompting him to confess his guilt." Article 555 provides: "Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion...