Red v. State

• Decision Date: 23 November 1898
• Citation: 47 S.W. 1003
• Parties: RED v. STATE.
• Court: Texas Court of Criminal Appeals

47 S.W. 1003

RED v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1898.

Appeal from district court, Franklin county; J. M. Talbot, Judge.

John Red was convicted of murder, and he appeals. Reversed.

King & King and S. M. Long, for appellant. Mann Trice, for the State.

HENDERSON, J.

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

The charge in the indictment was the murder of an infant child immediately after its birth, by suffocation, strangling, and by some means unknown to the grand jury. On the trial the state introduced the mother of said infant, Epsy Keith, who was evidently an accomplice. Her testimony showed that illicit relations existed between her and defendant; that said child was born on Friday night, alive, no one being present except herself and defendant; that defendant immediately took the child from the room where it was born, and while it was still living and crying, and that she did not see the child again; that he returned in a short time, and thereafter, on the following Monday, informed her that he had buried it near the path leading to the spring under the large, double oak tree. She further stated as the reason for her making different statements in regard to this matter that she was afraid John Red, who had threatened her, would kill her. Several days after the birth of said child, in pursuance of the suggestion of Epsy Keith, it was found buried under the oak tree near the path. The umbilical cord was wrapped around its neck, but it was not shown that it was choked to death by this means. No marks of violence were shown on the body. The doctors who made the post mortem examination, after applying the hydrostatic test to the lungs, testified that in their opinion the child was born alive. There was also testimony tending to show that appellant, about the time suspicion was aroused in regard to the child, fled from the county, but was captured and brought back. The testimony also shows that after his arrest, and after he had been duly warned, he stated to the officer that Epsy Keith had killed the child by suffocating it with her hand, that he was present at the time, and that at her request he buried it. A number of witnesses were introduced by the defendant in impeachment of the witness Epsy Keith, showing that she had stated to a number of persons that the child was born dead, and exculpated appellant. These are substantially all the facts proved on the trial.

The court charged the jury only on murder in the first degree. Applying the law to the facts, he instructed them, in effect, in one paragraph of the charge, that if they believed the child was born alive, and appellant killed it by suffocating and strangling it, etc., of his express malice aforethought, to find him guilty of murder in the first degree. In another paragraph of the charge, the court, after defining who were principals, instructed the jury as follows: "Now, if you believe from the evidence, beyond a reasonable doubt, that Epsy Keith, in Franklin county, Texas, on or about the 20th day of December, A. D. 1896, did give birth to a child; that said child, if any, was born alive, and in existence, by actual and complete birth, as explained to you; and if you believe from the evidence, beyond a reasonable doubt, that said Epsy Keith did on or about said time, in the county of Franklin and state of Texas, and after said birth, if any, unlawfully, violently, and intentionally, by strangling, smothering, or suffocating it, kill said child; and if you further believe from the evidence, beyond a reasonable doubt, that the defendant, John Red, was present, and knew the unlawful intent and purpose of the said Epsy Keith, and did then and there, with express malice aforethought, with a sedate and deliberate mind, and formed design to take the life of said child, aid by acts, or encourage by words or gestures, the said Epsy Keith in taking the life of said child, if she did take it,—then and in that case you will find the defendant guilty of murder in the first degree." We have quoted at length the above charge, because appellant's main contention for a reversal of this case is predicated thereon. He contends that the charge as to the guilt of Epsy Keith would only make her guilty of manslaughter, or at most murder in the second degree, and that appellant's guilt is measured by hers; that is, he can be convicted for no greater offense than she could be convicted of. At common law there were principals of the first and second degree. "A principal of the first degree being one who does the act either in person or through an innocent agent." "A principal of the second degree is one who is present, lending his countenance, aid, encouragement, or other mental aid, while...