Thomas v. State

• Decision Date: 15 December 1909
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

125 S.W. 35

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1909.

Appeal from District Court, Camp County; R. W. Simpson, Judge.

Grant Thomas was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Jno. W. Hooper and Sam D. Snodgrass, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at life imprisonment in the penitentiary.

1. The first ground of the motion for a new trial complains the court erred in the following charges: (1) "Express malice, as herein used, is when a person with cool and sedate mind, in pursuance of a formed design to kill another, or to inflict upon him serious bodily injury, which would probably end in depriving him of his life does, without legal justification, mitigation, or excuse, kill such person." (2) "Now, if you believe from the evidence beyond a reasonable doubt that the defendant killed Ben Hughes by striking him on the head with a baseball bat with his express malice aforethought, as defined in the sixth subdivision of this charge, and that the bat as used was likely to produce death or serious bodily injury, you will find him guilty of murder in the first degree, and assess his punishment at death or confinement in the penitentiary for life." Appellant objects to the charge on the ground that it does not require the jury to believe from the evidence that said blow was struck with the intention of killing the deceased. We do not think the charge is subject to this criticism.

2. The fifth ground of the motion for a new trial complains of the thirteenth paragraph of the court's charge, which is as follows: "Upon the question of the defendant's intent, and that you may determine under the facts in evidence he intended to kill Ben Hughes, you are instructed that the instrument or means used by which a homicide is committed may be taken into consideration in judging of the intent with which the act is done. It is a legal maxim that every one is presumed to intend whatever would be the reasonable and probable result of his own act and the means used by him. Hence, if a homicide be established, and the instrument used was reasonably calculated to produce that result, the law presumes that such was the design; if, however, the instrument used was not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used...