Smith v. State
| Decision Date | 17 November 1886 |
| Citation | 3 S.W. 684 |
| Parties | SMITH <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
The indictment in this case was presented by the grand jury of Webb county, Texas. It charged the appellant with the murder of one Thomas Riley, in the said Webb county, Texas, on the fifteenth day of February, 1882. A change of the venue to Nueces county was awarded, and at the trial in that county the appellant was convicted of murder in the second degree; his punishment being assessed at a term of five years in the penitentiary.
The effect of the state's testimony in this case was to establish the facts that the defendant, deceased, and another spent the whole of the night preceding the homicide gambling in the rear room of a saloon. The defendant drank heavily, and, according to the testimony of the third party to the game, was in a wretched mental condition throughout the night. This witness did not consider him right in his mind, and knew that he had long been regarded as mentally unsound. This witness and deceased conspired together to and did cheat and win from the defendant all of his money. Defendant then played against the bank dealt by deceased, on credit, until about 10 o'clock in the morning, when deceased declined to extend further credit. Thereupon defendant reached across the table, and seized a number of betting checks. Deceased attempted to prevent the defendant from taking them, when defendant drew his pistol, and fired several shots, killing deceased. Several witnesses for the defense testified that they had known the defendant since his early childhood, and knew that he had always been generally regarded, if not actually insane, afflicted with recurrent insanity; and when excited, or under the influence of liquor, incapable of distinguishing right from wrong. Each witness recited instances of eccentric conduct on the part of the defendant indicating his insanity at the various periods covered by their testimony.
Stanley Welch and E. J. Hammer, for appellant, contending that the proof on the part of the defense filled the measure of the burden of proof to establish insanity, fixed by law upon the defendant, and that, therefore, the verdict was against the evidence.
Asst. Atty. Gen. Burts, for the State.
1. There was no error in refusing to grant defendant's application for a continuance. It was his second application, and it does not comply with the statute, in that it fails to state that the absent testimony could not be procured from any other source, and that defendant had reasonable expectation of procuring the same at the next term of the court. Code Crim. Proc. art. 561. It appears from the evidence adduced on the trial that the material facts which defendant expected to prove by the absent witness were proved on the trial by other witnesses, and there is no ground for supposing that he was probably injured in his rights because of the refusal of the court to continue the cause. Viewed in the light of the evidence adduced on the trial, the absent testimony was immaterial, and could not have benefited the defendant. Besides, it was not made clearly to appear that the testimony of this witness could not have been obtained by deposition, before she became paralyzed, and yet at a time when defendant knew that, by reason of her age and infirmity, she might not be able personally to attend and testify on the trial.
2. There is in the record a general exception to the charge of the court, — to the entire charge, not pointing out any particular error complained of, not calling the attention of the court definitely to anything. Bills of exception, when too indefinite to point out distinctly the matter complained of as error, will not bring such matter properly before this court for review. Walker v. State, 19 Tex. App. 176; Phillips v. State, Id. 158; Davis v. State, 14 Tex. App. 645. The primary purpose of a bill of exception to a charge of the court is to direct the attention of the trial judge to the particular error or errors complained of, thus affording him an opportunity to correct the error or errors in time to prevent prejudice to the defendant's rights. This purpose is not accomplished by a general exception to the whole charge. A secondary purpose of such bill is to enable this court, on appeal, to readily perceive the error or errors complained of, without having to examine other portions of the record. A general exception to an entire charge affords this court no aid or information whatever in determining the correctness of the charge. Such being the character of the bill of exception in this case, we are not called upon to consider any errors in the charge which are not fundamental, or which were not in our judgment calculated to injure the rights of the...
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