Tune v. State

• Decision Date: 07 March 1906
• Citation: 94 S.W. 231
• Parties: TUNE v. STATE.
• Court: Texas Court of Criminal Appeals

94 S.W. 231

TUNE v. STATE.

Court of Criminal Appeals of Texas.

March 7, 1906.

Rehearing Denied March 23, 1906.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

West Tune was convicted of murder, and appeals. Affirmed.

J. T. Spencer and T. P. Whipple, for appellant. W. H. Fears, Mark Smith, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murdering the infant child of Bertie Jones, and his punishment fixed at confinement in the penitentiary for life.

The first error assigned complains that the county attorney was permitted by the court to dismiss the first count in the indictment charging defendant as accessory to murder, without filing his written reasons therefor. The bill presenting this matter does not state as a fact that no written reason was filed, but appellant's bill merely shows that he objected to the dismissal, because the written reasons were not filed as required by law. We know of no law that would prevent the court dismissing a count in the indictment because the written reasons were not filed. There is a count upon which the defendant was convicted, charging him with the offense of murder, and upon this count appellant was tried. There was no error in the action of the court.

Appellant further complains that the court erred in overruling his application for continuance for want of the testimony of J. W. Bailey, by whom appellant expected to prove that Bailey had had carnal intercourse with the accomplice, Bertie Jones, and was the father of her child, which defendant is alleged to have killed. Attached to the motion for new trial is the affidavit of the absent witness, Bailey, swearing positively that he had never had any carnal knowledge of Bertie Jones. As we take it this disposes of appellant's motion for continuance.

The third error assigned is that the court erred in the eleventh paragraph of the court's charge, as follows: "Now, if you believe from the evidence beyond a reasonable doubt that the defendant, West Tune, did as charged in the indictment, with express malice aforethought, with his fist, it being an instrument well calculated and likely to produce death, by the manner in which it was used, with a sedate and deliberate mind and formed design to kill, did unlawfully strike with his fist the infant child of Bertie Jones, and thereby kill said infant child, you will find him guilty of murder in the first degree," etc. The objection to the charge seems to be that it was not on the weight of the evidence in assuming a fact as proved against defendant. We do not think the charge is incorrect. There are various modes and methods alleged in the indictment by which the death of the infant was accomplished; one was that appellant struck the infant with his fist. Appellant cannot complain that the court limited the consideration of the jury to one method charged in the indictment.

The fourth error assigned complains of the following portion of the court's charge: "The jury are further instructed that if they believe from the evidence, beyond a reasonable doubt, that some person unlawfully killed the infant child of Bertie Jones, on or about the time alleged in the indictment, yet, if the jury have a reasonable doubt, arising from the evidence, or from the want of exidence, whether the defendant was present at the time and place where said offense was committed (if it was), then it would be the duty of the jury to give the defendant the benefit of such reasonable doubt (if any), and acquit him." The objection to this charge is that it is upon the weight of the evidence, and inferentially assumes that defendant did the killing. After a careful scrutiny of the charge, we do not think appellant's objections are well taken.

The sixth error complains that the assistant county attorney, in the presence of the jury, stated that the evidence showed that defendant had debauched the said Bertie Jones and made her a household drudge. We do not think there was any error in this, since the facts were clearly a proper predicate for such an inference.

The seventh assignment of error complains of the questions asked Dr. Simpson by the state, as follows: "If he knew what killed said infant, and witness stated that he did not. Then the county...