Shelton v. State
| Decision Date | 01 January 1870 |
| Citation | 34 Tex. 662 |
| Parties | ED. SHELTON v. THE STATE. |
| Court | Texas Supreme Court |
1. On a trial for murder the opinion of a medical man as to the cause of the death, and whether the neck of the deceased was broken before or after death, was competent evidence. Such evidence is indispensable to the ends of justice in such cases as the present, where there was no witness present at the death of the deceased.
2. When a wife has been examined as a witness in behalf of her husband, the prosecution has the right to cross-examine her for the purpose of simply testing the truth of her testimony for the defense. A cross-examination for that purpose is not in violation of the provision of the code which prohibits a husband or wife from testifying against the other, except in certain cases. Pas. Dig. art. 3113.
3. Evidence of brutal and cruel treatment towards the deceased, prior to the homicide, does not, under all circumstances, suffice to establish such malice as will sustain a conviction for murder in the first degree. See the facts of the present case for an illustration.
APPEAL from Guadalupe. Tried below before the Hon. Henry Maney.
At the March term, 1871, of the district court for the county of Guadalupe, the appellant was indicted for the murder of his little daughter, a child only about eleven months old. His trial was had at a subsequent day of the term, when the jury found him guilty of murder in the first degree, and sentence of death was passed upon him, but execution was suspended to await the result of his appeal to this court.
No witness was present when the child came to its death. The defendant and deceased, as well as several of the witnesses, were persons of color. The family of the defendant consisted only of his wife and the child. The deceased, it seems, came to her death on Sunday, the nineteenth of March, 1871, while her mother was absent from home on a visit.
John and Dinah Spence, husband and wife, testified at considerable length to having seen the defendant, on sundry occasions, beat the child with an ox whip lash and with a belt, and burn her legs with his pipe to such a degree as to leave sores.
Dr. McKnight saw the body of the deceased at the house of the defendant, in Guadalupe county, on the day after her death. He found her body and legs badly lacerated and bruised, and her neck broken; thought that independent of the dislocation of the neck, the other injuries were sufficient to have caused her death. This witness was asked by the prosecution whether the neck of the child might not have been broken after death. The defense objected to the question, because it involved nothing of science or skill, and called for mere matter of opinion. The court overruled the objection, and the witness gave it as his opinion that the dislocation preceded the death in this instance. The defense reserved their objection by bill of exception.
The wife of the defendant was examined in his behalf; and contrary to the testimony of the other witnesses, she testified strongly to the uniform kindness and affection of the defendant towards the deceased. She proved that the defendant told her that he had gone coon-hunting, and the child had fallen off the bed and killed herself. The prosecution was permitted, over objections made and exceptions duly reserved by the defense, to cross-examine this witness upon her testimony for the defense, and also to question her as to her statements made to other persons, to the effect that the defendant was in the habit of cruelly maltreating the deceased; and subsequently the prosecution introduced Dr. McKnight and the father of the witness to prove her statements to them of such maltreatment, which statements she denied upon her cross-examination.
The accused was ably defended in the court below by appointed counsel, who also conducted this appeal in his behalf.
Ireland, White and Jones, for the appellant. Express malice must be proved in order to sustain a conviction of murder of the first degree. McCoy v. The State, 25 Tex. 33;Ake v. The State, 30 Tex. 466.
It is not necessary to state in an indictment anything which is not necessary to prove (Pas. Dig. art. 2864); which is equivalent to saying it is necessary to state in an indictment everything which it is necessary to prove.
The opinion of Dr. McKnight, that the neck of the child might have been broken after death, was given in the teeth of law so ably laid down in Cooper v. The State, 23 Tex. 331,“where the jury are as competent as any other persons to deduce the proper conclusion from a given state of facts, the opinions even of scientific witnesses are not admissible in evidence as to the conclusion or inference to be drawn from them.” A hod-carrier's opinion would have been as valid...
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