Powell v. State

• Decision Date: 28 November 1900
• Citation: 59 S.W. 1114
• Parties: POWELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1114

59 S.W. 1114

POWELL v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1900.

Appeal from district court, Walker county; J. M. Smither, Judge.

Austin Powell, Jr., was convicted of murder in the first degree, and he appeals. Affirmed.

A. T. McKinney, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary; hence this appeal.

The only errors assigned relate to the charge of the court and the insufficiency of the testimony. Appellant insists the court erred in instructing the jury, in effect, in ascertaining the state of mind of appellant at the time of the killing they could look to the facts and circumstances surrounding appellant before, at the time of, and subsequent to the homicide; appellant's contention being that on this charge the jury would be authorized to take into consideration the act of defendant's shooting at Mary Hill, a sister of deceased, immediately after the homicide. In our opinion, it was entirely competent for the jury to look at this very fact as a circumstance indicating appellant's state of mind at the time he committed the homicide. The fact of his shooting at Mary Hill was a part of the res gestæ, and as such was admissible in evidence. It was admissible to show both motive and state of mind. We have not quoted the charge in full as given, but it was in accordance with the approved forms on the subject. McCoy v. State, 25 Tex. 33.

In motion for new trial appellant excepts to the court's charge on the defense of accidental homicide, on the ground that the charge was contrary to the law and inapplicable to the facts of the case. In our opinion, it would have been error for the court to have failed to charge on accidental homicide. This defense was predicated on appellant's testimony, who stated he had no intention of killing deceased; that they were scuffling over a pistol, and that it was accidentally discharged, and killed her. The charge instructs the jury to acquit if the evidence in regard to the homicide raised in the minds of the jury a reasonable doubt as to whether deceased, Amanda Hill, was shot and killed intentionally by defendant, or whether she was accidentally shot and killed in the scuffle between defendant and Amanda Hill over the pistol. This was tantamount to telling the jury, if they entertained a reasonable doubt as to whether the killing was...