Scruggs v. State

• Decision Date: 25 March 1896
• Citation: 34 S.W. 951
• Parties: SCRUGGS v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 951

SCRUGGS v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1896.

Appeal from district court, Lamar county; Ben H. Denton, Special Judge.

Will Scruggs was convicted of murder in the second degree, and appeals. Affirmed.

Park & Birmingham, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at a term of 7½ years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal.

There is but one bill of exceptions in the record, and that is to the admission of the evidence of James Jackson, taken on the examining trial of this case. The ground of objection stated in the bill is that no sufficient predicate was laid. It was agreed that the absent witness, James Jackson, had testified in the case on the examining trial, and that his testimony was in the record of that trial; but the contention of the appellant was that it was not shown, by legal and competent testimony, that said James Jackson was at Sedalia, in the state of Missouri. R. W. Baughn, the witness by whom it was proposed to lay the predicate, testified, in substance, that he was acquainted with James Jackson; that said Jackson was in Sedalia, Mo.; that he knew this from letters that he saw passing from him and others. On being examined more particularly, he stated that the letters he had seen were from the guardian of James Jackson, who lived at Monticello, Ark., and were addressed to the son-in-law of witness, who lived near Petty. The appellant claims that this predicate was not sufficient to show that said witness Jackson was then in Missouri; that none of the letters were from Jackson, but were from a third party in another state; and that said testimony was purely hearsay. In this contention of the appellant we concur. But said witness Baughn also testified that James Jackson lived in Monticello, Ark.; that, at the time of the killing of George Rutherford, he was in Petty, on a visit to the son-in-law of witness; that, some time after George Rutherford was killed, said Jackson left Petty, to go to his home in Arkansas; that he saw him leave Petty on the train; that he said, at the time, that he was going to Arkansas. This proof was admissible to show he lived in Arkansas; and, when he left Petty, Tex., the fact that he stated, at the time he took the train, that he was going to Arkansas, was competent evidence to establish the fact that he was en route to Arkansas. What one says when he goes upon a journey or returns to his home is admissible in evidence as a verbal act, indicating a present purpose and intention; and in this case, the proof at least raised a prima facie case that the witness Jackson was in the state of Arkansas; and whether he went from there to the state of Missouri is immaterial. The only necessary fact to be established is that he was not in the state of Texas. See 1 Greenl. Ev. § 108; Richmond v. Thomaston, 38 Me. 232; Cornville v. Brighton, 39 Me. 333. The predicate in this regard was sufficiently laid to authorize the introduction of the testimony of said witness taken before the magistrate on the examining trial.

Appellant assigns as error that part of the charge of the court contained in the seventeenth paragraph thereof. The ground of objection is that the court, in defining implied malice, instructed the jury "that, if they believed that defendant shot and killed deceased with malice aforethought, in a sudden transport of passion, aroused without adequate cause, that they would find him guilty of murder in the second degree." The contention of the appellant is that the charge is erroneous because it failed, in that connection, to define to the jury "adequate cause." If the definition of "adequate cause" was necessary, this was given in the court's charge on manslaughter, and was sufficient. This same question was decided by this court at the present term, in the case of Childs v. State, 34 S. W. 939, to which reference is made.

Appellant assigns as error that part of the charge of the court contained in the twenty-third paragraph thereof, which instructed the jury on the law of aggravated assault. Said instruction complained of is as follows, to wit: "If the jury believe * * * that, if the defendant unlawfully committed an assault upon George Rutherford, by striking him with a pistol, and such pistol, as so used for striking, was not in its nature calculated to produce death, and that, in committing such assault, the defendant accidentally discharged said pistol, and thereby killed said Rutherford, and if you do not find that such discharge and killing were caused by negligence or carelessness of the defendant, and if you do not find, from the evidence, an apparent intention on the part of the defendant to kill, you will find him guilty of an aggravated assault, and assess his punishment," etc. The objection of the appellant is that, in the latter portion of the said charge, the court used the word "apparent," instead of "evident," as is contained in the statute. The contention of the appellant is that "evident" has a different meaning from the word "apparent." It is to be presumed that the appellant, under the circumstances of this case, desired as liberal a charge on the question of aggravated assault as possible, and the word "apparent" in the connection in which it was used, appears to us to be more liberal in favor of the appellant than the word "evident." While the court gave a charge on both negligent homicide and on aggravated assault, based on an accidental discharge of the pistol as used by the appellant in striking (which charge was doubtless based on the testimony of the appellant himself), said charges were scarcely called for, even by his testimony; and certainly, when given, we can see no occasion for him to complain. The testimony on this point was as follows: The doctor who examined the body stated that the wound which caused the death of the deceased entered near the middle of the neck, and very nearly on a line from the center of the chin to the breast bone. The wound was a little to the left of the center. The direction was downward, and a little bit outward, as indicated by the probe. The deceased was paralyzed from the shoulders down, showing that the ball had touched the spinal cord at some point. He also testified that he found another injury on the top of the head of the deceased, about on a line drawn from one ear to the other, and to the left of the center. It was a small V-shaped wound, the open part pointing towards the ear. It had been made by a blunt instrument. This was a slight wound. Appellant, on this point, testified that he drew his pistol, and hit the deceased on the head an overhand lick. "Just as I struck him, the pistol went off. It seemed like at the same time." That he did not intend to fire the pistol. It went off in the lick. When it fired he thought it missed the deceased's head, and did not think he had shot him. That he did not know how it hit him in the neck. The deceased himself stated, as a part of the res gestæ of the difficulty, that the defendant shot him for nothing, and that he also hit him on the head with a pair of brass knucks. The doctor's testimony also indicates that the neck of the deceased about the wound was powder burned. The shooting was done with a double-action, five-shooter, 38-caliber pistol. The theory of the appellant, to reduce the homicide to a negligent homicide or an aggravated assault, was based on the testimony as above given. If the wound in question could not have been inflicted in that way, —that is, if it was a physical impossibility for the appellant to have struck the deceased on the top of the head, a little to the left of the center, and on a line between the ears, and by the said lick to have discharged the pistol, and for the ball to have penetrated a little to the left of the center of the front part of the neck, between the chin and the breast bone,—then there was no accidental homicide in this case. To say the least of it, the contingency is very remote that the shot in question was inflicted after that manner. Still the court, as before stated, gave a charge on negligent homicide, and then a charge on aggravated assault. While it would have been better, in the latter charge, to have followed the language of the statute, and used the word "evident," yet we fail to see how the use of the word "apparent" in that connection, could have injured the appellant. If the jury, under the charge, believed that the killing was accidental, and they believed that there was no "apparent" intention to kill the deceased, they would scarcely have hesitated in the matter, if they had believed that there was no "evident" intention to kill. They were only required to find the want of "apparent" intention, which, as stated before, was more liberal in favor of the appellant than...