Murphy v. State

• Decision Date: 15 April 1896
• Citation: 35 S.W. 174
• Parties: MURPHY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 174

35 S.W. 174

MURPHY v. STATE.

Court of Criminal Appeals of Texas.

April 15, 1896.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Tom Murphy was convicted of murder in the second degree, and sentenced to the penitentiary for 34 years. From the judgment and sentence, he appealed. Reversed.

Croft & Croft and Geo. W. Murphy, for appellant. E. O. Call and Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for the term of 34 years; and from the judgment and sentence of the lower court he prosecutes this appeal. The conviction depends wholly upon circumstantial evidence, and the assignments of error bring in review the action of the court in allowing the amendment of the indictment, the overruling of a motion for a continuance, and the charges given by the court, and those requested and refused on the part of the appellant, and also questions as to the admissibility of testimony. We will only notice such assignments as are necessary to a proper disposition of the case.

The appellant excepted to the action of the court in permitting the county attorney to amend the indictment by inserting the word "October" in the beginning part thereof, so as to show the date of the organization of the grand jury which found the indictment. To said bill is appended three grounds of objection, and from these it would appear that the amendment was allowed after the parties announced "Ready," and entered upon the trial. The bill itself, however, does not so certify. If, however, the amendment was made after the parties entered upon the trial, such entry of the word "October" was merely formal, and was not necessary, and the trial could have proceeded without such amendment. The minutes of the court show the date of the organization of the grand jury. The statute regulating the requisites of the indictment does not make the date of the organization of the grand jury one of the essential elements of such indictment. The entry of such date is therefore merely formal. It is wholly immaterial whether the date of such organization appear in the face of the indictment or not, and the allowance of such amendment by the court constituted no error. See Osborne v. State, 24 Tex. App. 398, 6 S. W. 536.

Appellant objected to the testimony of the state's witness Jim Griggs, on the ground, as stated by him, that said witness did not understand the obligations of an oath, but that he thought he would go to the bad place when he died if he did not tell the truth; that he did not know that he could be punished by the courts here for not telling the truth. From this it would appear that the witness believed in a state of future rewards and punishments. He does not seem, however, to have understood the pains and penalties for perjury, as provided by law. No religious form of belief is required by our law in order to qualify a witness to testify. As to children our Code provides that, after being examined by the court, if they appear not to have sufficient intellect to relate transactions in respect to which they are interrogated, or do not understand the obligation of an oath, they shall not be permitted to testify. In this case, the witness was 10 years of age. It does not appear, from the bill, that he did not have sufficient intellect to relate the matters about which he was a witness. He did understand, however, that part of the obligation of his oath relating to a future state of rewards and punishments; and, while he manifested a want of knowledge that he could be punished by the courts for perjury, yet his investigation in this regard appears to have been very incomplete. This inquiry should have been pressed further, and, if necessary, such information brought home to the witness, and then it could be seen whether or not he had sufficient intelligence to understand the obligation of said oath.

An exception was taken to the introduction of the testimony of Weaver as to his finding the pistol of Jim Murphy in a trunk at the house of Meadow, in a room where the boys slept together on the evening of the day after the homicide. The evidence that he so found the pistol was admissible. It was not proper, however, that he should state that he found said pistol after he had a conversation with the defendant. The fact was that he found the pistol in pursuance of what Jim Murphy told him, and, for aught that appears, Jim Murphy's disposition of the pistol was after any conspiracy that may have existed between Jim Murphy and Tom Murphy in regard to the homicide had ceased.

We fail to see the pertinency or materiality of the testimony of the witness T. J. Luster, to the effect that he arrested Tom Murphy, the day before the homicide, in Corsicana, and took a pistol from him, which he kept for three or four months thereafter. This evidence was immaterial, however, and could not have prejudiced the appellant, Tom Murphy. The effect of it was really to his advantage, in that it showed that, on the occasion of the homicide, he was very likely not armed, and that his brother, Jim Murphy, only had a pistol.

The appellant in this case offered to prove by a witness that, on the night before the homicide, the defendant, Tom Murphy, asked witness to lend him his handkerchief; that his nose was bleeding; that he wanted it for the purpose of wiping his nose. On objection by the state it was excluded. In view of the fact that the state brought to bear against the defendant bloody spots on his shirt and blood above his eye as incriminative facts, it would appear that the testimony above excluded should have been admitted. It is true that the witness says that it was dark when defendant borrowed his handkerchief, as he said, for the purpose of wiping the blood from his nose, and he did not see any blood; that the defendant offered him the handkerchief back, but he told him to throw it away, as it was bloody. Yet this circumstance happened at a time when it is not reasonable to believe...