Musick v. State
| Citation | 18 S.W. 95 |
| Court | Court of Appeals of Texas |
| Decision Date | 20 March 1886 |
| Parties | MUSICK v. STATE.<SMALL><SUP>1</SUP></SMALL> |
Appeal from district court, Cherokee county; J. I. PERKINS, Judge.
R. P. Musick was convicted of murder in the second degree in killing one Philip B. Owens, and he appeals. Affirmed.
Decedent was shot and killed while traveling along the road at night in company with one J. G. McElroy. There was evidence that the shooting was done by defendant and another or others, and that it was their intention to kill McElroy, who was assisting in certain prosecutions against defendant and another for defrauding a railroad company by placing worthless animals on the track for the purpose of making fictitious damage claims against the company.
P. F. Edwards and G. T. Ingraham, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.
It would seem to be clear, from the evidence in this case, that the parties (one of whom was this appellant) implicated in the murder of Owens, the deceased, intended to kill one McElroy, and not Owens. The law applicable to this phase of the case was fully expounded by the trial judge in his able charge to the jury. The rule of common law was that, if A. shoots at B., with express malice, and by accident or mistake kills C., the offense would be what we call murder in the first degree. Under our Code,2 to constitute murder of the first degree, or, rather, a murder upon express malice, it must and can only be a malice directed towards the particular individual; and, if another than the one against whom this malice is conceived and entertained be the mistaken victim of such malice, the crime is murder of the second degree. McCoy v. State, 25 Tex. 38; Ferrell v. State, 43 Tex. 503; McConnell v. State, 13 Tex. App. 390; Clark v. State, 19 Tex. App. 495.
Supposed defects in the charge of the court are the only errors pointed out or complained of by appellant on this appeal. We have read the charge carefully, and, in our opinion, it is all the law demands upon the facts of this case. There is no error in this record, and 40 years in the penitentiary is not excessive punishment when the facts connected with the murder, and the motives which induced it, are properly considered. The judgment is in all things affirmed.
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Gladden v. State
...See Van Barnes v. State, 57 Tex.App. 449, 125 S.W. 39 (1909); Thomas v. State, 53 Tex.App. 272, 109 S.W. 155 (1908); Musick v. State, 21 Tex.App. 69, 18 S.W. 95 (1886). 31 Compare State v. Gardner, Del., 203 A.2d 77 (1964), where the Supreme Court of Delaware expressly declined to follow th......
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...act was aimed at been killed, but in some of the states such a killing is never regarded as murder in the first degree. (Musick v. State, 21 Tex.App. 69, 18 S.W. 95; Honeycutt v. State, 42 Tex. Crim. 129, 57 S.W. 806; Wright v. State, 44 Tex. 645; Bratton v. State, 10 Hump. 103 (Tenn.); Rob......
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...party, in an attempt to slay another, is murder upon implied malice. Breedlove v. State, 26 Tex. App. 445, 9 S. W. 768; Musick v. State, 21 Tex. App. 69, 18 S. W. 95; McConnell v. State, 13 Tex. App. 390; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Angell v. State, 36 Tex. 542, 14 Am. Rep.......
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