Smith v. State

• Decision Date: 19 April 1899
• Citation: 50 S.W. 938
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

50 S.W. 938

SMITH v. STATE.

Court of Criminal Appeals of Texas.

April 19, 1899.

Appeal from district court, Orange county; Stephen P. West, Judge.

R. W. J. Smith was convicted of murder in the first degree, and he appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

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

As a ground of his motion for new trial, he urged that the copy of the indictment served upon him was defective. This matter comes too late after conviction.

The charge of the court is complained of, and an isolated sentence in regard to threats is culled by appellant as error. The charge as a whole in regard to this matter should be considered. The following is the charge given: "Threats made by one to kill another will not justify the latter in killing the former, unless he (the one who made the threat) was at the time of the killing making some demonstration to execute the threat. If deceased had threatened to take the life of defendant, such threats, if any, would not justify defendant in killing deceased." We do not understand how this charge, under the facts of this case, injured appellant. Deceased was making no demonstration at the time he was killed,—had thrown up his hands, and was begging for his life. There was some evidence introduced to the effect that deceased had made threats against the accused.

Another ground of the motion for new trial is based on the absence of the witness Harris, who had been summoned to attend the trial. This should have been presented in a motion for continuance or postponement; and if appellant announced "Ready" under the impression or belief that Harris was present, when he was not, as soon as his absence was discovered appellant should have moved to continue or postpone the case. As presented, this matter cannot be urged on the motion for new trial.

The jury returned their verdict in about 25 or 30 minutes after their retirement. This is complained of as being an indication of a want of deliberation. The length of time a jury may take in considering their verdict and arriving at a conclusion has not been fixed by law. Of course, they are expected to deliberate calmly upon the matters and questions submitted to them upon the trial, but we are not authorized to say the time occupied by them was not sufficient. It is not even contended that such was the case. We have no rule by which we can determine the length of time a jury should occupy in deliberating upon their verdict.

Nor do we think there was error in the court's failure to charge on murder in the second degree. If the facts in this record are true,—and they seem to be undisputed,—the killing was deliberately done. In fact, it is seldom that a record shows more deliberation. We take it to be a sound rule, and one upheld by an unbroken line of decisions in this state, that it is only necessary to charge on the law applicable to the facts in evidence. Where the facts are positive and uncontroverted that the killing was done deliberately and sedately, then the law of murder in the first degree would only apply. If there should be a doubt as to whether the killing was upon deliberation and express malice, of course the law applicable to murder in the second degree should be given; and, if the facts justify or call for it, the law applicable to other inferior grades of homicide should be given. But the proposition is too well settled for discussion that the court is only required to charge on the law applicable to the evidence in the case.

Nor do we think there is any merit in the motion with reference to newly-discovered testimony. If appellant's mind was weak or erratic, the slightest diligence could have ascertained this fact at any time before the trial. The homicide and trial occurred in the same town. Appellant had been living there for some time. The...