Perry v. State

• Citation: 44 Tex. 473
• Parties: ARCH PERRY v. THE STATE.
• Decision Date: 01 January 1876
• Court: Supreme Court of Texas

44 Tex. 473

ARCH PERRY

v.THE STATE.

Supreme Court of Texas.

1876.

APPEAL from Matagorda. Tried below before the Hon. W. H. Burkhart.

The facts are fully given in the opinion.Asa E. Stratton, for appellant. I. The verdict is informal. It assesses punishment in case where the law specially imposes it. (Paschal's Dig., art. 2271.) Under art. 5, sec. 8, Constitution of Texas, the jury are not to assess punishment when the same is specially prescribed by law. (See also 1 Cranch, 50.) Paschal's Dig., arts. 3092, 3093, prescribes the time and mode of correcting informal verdict in criminal cases. If not done as therein prescribed, informality inures to defendant's benefit. There can be no legal judgment unless the verdict is formal; it is the basis of the judgment.

II. The verdict is contrary to the evidence. The homicide was committed during a quarrel and scuffle. Homicide done in actual conflict is but manslaughter. (Whart. Am. Cr. Law, sec. 935.)

Under the rule that the defendant is entitled to all substantial doubts, is it not a reasonable conclusion to say that the homicide was committed under fear of death or bodily harm rather than from “express malice?” Fear of death or bodily harm justifies homicide. (Paschal's Dig., art. 2229.) No retreat necessary. (Paschal's Dig., art. 2230.)

III. Name of deceased was not proven as alleged. (26 Tex., 113.) Isaac Thomas Freedman and Isaac Thomas are no more the same name than were Edward Toney and Edward Toney Joseph Scott. (13 Tex., 74.) It was decided that they were not the same.

IV. The indictment is insufficient. It neither charges that the killing was ““unlawfully” done or that the deceased was “a reasonable creature in being in this State.” (Paschal's Dig., art. 2266.) Neither that the killing was with “““express malice.” (Paschal's Dig., art. 2267.) “Express malice” not presumed must be proven. (36 Tex., 528.) To be proved it must be alleged. “Malice aforethought,” the charge in the indictment, may be either express or implied. To be murder of the first degree, it must be express. (Paschal's Dig., art. 2267; 25 Tex., 33.)

The court therefore gave to the indictment the harshest construction, rather than the most favorable to the defendant. Even if “express malice” is a negative allegation, it should be used. (25 Tex. Supp., 340; 1 Greenl. Ev., pp. 78, 81, and notes.)

George Clark, Attorney General, for the State.

GOULD, ASSOCIATE JUSTICE.

The indictment follows the usual form, the sufficiency of which under our statute cannot now be questioned. It has not been held necessary to aver that the person killed was a reasonable creature, nor to charge that the killing was with express malice, the words “with malice aforethought” being sufficient. (Henrie v. State, 41 Tex., 573;Gehrke v. State, 13 Tex., 573;McCoy v. State, 25 Tex., 37;Calvin v. State, 25 Tex., 793;Perryman v. State, 36 Tex., 321.)

The verdict is not vitiated because, after finding the defendant guilty of murder in the first degree, the jury unnecessarily proceed to fix the punishment at death. Whilst they might have substituted imprisonment at hard labor for life, instead of death--and in that event it would have been necessary that their verdict should be so framed--and whilst, where a verdict finds the defendant guilty of murder in the first degree, and is silent as to the punishment, the law steps in and affixes the punishment of death, it is not perceived that the unnecessary assessment of the punishment renders the verdict in anywise defective.

The court below treated the indictment as charging defendant with the murder of Isaac Thomas, and the evidence shows that the party killed was a freedman of that name. It is contended, apparently for the first time in this court, that the indictment charges the murder of Isaac Thomas Freedman. In the indictment, as copied in the record, the name, wherever it occurs, is thus written. So the name of the defendant, in the indictment, as sent up in the record, is written Arch. Perry Freedman. Yet, without objection on his part, the trial proceeded against him as Arch. Perry. The original indictment has not been sent up, and we cannot say that the court erred in treating the word “freedman” in each case as descriptive of the party, and not as a part of the name.

The evidence, as sent up, is extremely meager. The killing occurred about 9 or 10 o'clock, on a moonlight night in August or September, 1867, in Matagorda county, at the Rugely plantation, which was occupied by a large number of freedmen, and where defendant and deceased both lived.

Green, the only witness of the occurrence who testifies, says that the defendant came up to where he and Isaac Thomas were sitting on a bench, near Sam. Rugely's house, which adjoined that of defendant. Besides these parties, Andrew Phillips and a brother of Green were present. After having seated himself on the bench, and after talking some time, defendant said to deceased, “I have heard that you said that my wife and myself had been talking about you last night.” That the deceased replied, “Yes; but that I paid so little attention to it, and thought so little about it, that I care nothing about it, and do not wish to have any fuss about it;” that then the defendant cursed the deceased for some time, calling him “a damn liar, and a damn son of a bitch;” that the defendant had taken the butcher-knife from witness' belt previously, and when the deceased replied “that he would not take such abuse from any man,” the parties got up and approached one another, and pushed one another; he could not see who pushed first, but that defendant stabbed deceased in the breast with his right hand at the time he pushed with his left; that deceased lived about fifteen minutes, and as soon as he was stabbed turned to a brother of witness and said, “Arch. has stabbed me,” and asked for his pistol; that he wanted to shoot defendant; that the freedmen were generally in the habit of carrying arms; that he helped [to] dress the body, but does not remember if there were any arms upon it or not. Witness was twenty-seven years old, and Arch. was younger than witness; knew him younger by two or three years. The deceased was a man of full age. This witness also testified that defendant used his wife's name once in addition to the time already alluded to; that defendant's wife was in his house, but did not know whether she was present before or after the killing.

Dr. Henry Rugely fixes the approximate date of the killing, and testifies as to the wound, “that a person cut as was the deceased could not survive more than three or four minutes; also, that the deceased was a large and powerful man--larger than the defendant.”

Frank Rugely testified “that the deceased, whom he knew well, was a large, powerful, and dangerous man, but not quarrelsome.”

This is the entire testimony.

The charge of the court instructed the jury as to the punishment of murder in the first and second degrees; defining murder in the first degree as murder with...