Turner v. State
| Decision Date | 13 December 1899 |
| Citation | 54 S.W. 579 |
| Parties | TURNER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Burnet county; John M. Furman, Judge.
James Turner was convicted of manslaughter, and he appeals. Affirmed.
J. G. Cook, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of two years, and prosecutes this appeal. This is the third appeal in this case. 46 S. W. 830, 51 S. W. 366. The statement of facts is not materially different on this trial and on the former trial. For a report of the testimony had on the former trial, see 46 S. W. 830.
Appellant contends "that the prosecution could not be maintained under the indictment, inasmuch as defendant had been tried and acquitted at previous terms of this court of murder under the indictment, and that said indictment had become functus officio, and that a prosecution for manslaughter could not be maintained under said indictment." The rule and practice are otherwise in this state.
Appellant insists that the court erred in refusing to sustain his objections to the admission of certain testimony which he claims indicated malice on the part of appellant in the homicide, and which could not be introduced on a trial for manslaughter. We do not believe this contention is sound. The evidence complained of was for the most part res gestæ. All was relevant as pertaining to the transaction, and tended to show the animus or state of mind existing between the parties. Even if it be conceded that some of said testimony suggests malice, yet it would be exceedingly difficult to draw the line in a trial for homicide between testimony that was relevant to any particular grade of unlawful homicide, so that, as a general proposition, all testimony connected with the homicide, and tending to shed light on it, either as res gestæ or as indicating motive, ought to be admitted. We apprehend, however, appellant does not make any serious contention that said testimony was not admissible, but merely raises the objection to the evidence in order to re-enforce himself in the assertion of his next proposition.
On the trial the court only submitted manslaughter and self-defense. Appellant prepared and presented to the court a charge to the effect that, if the jury believed the testimony introduced showed appellant was guilty of murder in either the first or second degree, to acquit him, inasmuch as he had been previously tried and acquitted for said offense. In that connection he cites us to Parker v. State, 22 Tex. App. 107, 3 S. W. 100; Fuller v. State, 30 Tex. App. 562, 17 S. W. 1108; Carter v. State (Tex. Cr. App.) 40 S. W. 498; and a number of other cases. The Parker Case, supra, undoubtedly is authority for the proposition that where an accused has been convicted of manslaughter, under an indictment charging him with murder, and a new trial has been granted, on a subsequent trial of the case it would be improper for the court to instruct the jury that, if they believed the evidence showed that defendant was guilty of murder of either the first or second degree, they would be authorized to find him guilty of manslaughter. And this rule has since been followed. It would therefore seem to be sound doctrine that on a subsequent trial of an accused person for manslaughter, where he had previously been acquitted of murder of the first or second degree, and there was evidence reasonably tending to show that he was guilty of murder of either the first or second degree, and not guilty of manslaughter, it would be the duty of the court, especially when requested, to instruct the jury that, if they believed the evidence established the guilt of appellant of either murder of the first or second degree, to acquit him altogether. We note in this connection that the assistant attorney general makes a strong argument in opposition to this rule, contending that inasmuch as the Fuller Case, supra, holds that the rule does not apply where a party has been convicted of murder in the second degree, because malice, as stated in that opinion, applies to both degrees of murder, the same doctrine should apply where the accused has been convicted of manslaughter; arguing, as he does, and citing authority to the effect, that malice is also an essential ingredient of manslaughter. We are inclined to agree with the assistant attorney general that malice does pertain to a charge of manslaughter, but not malice aforethought, for this is confined solely to murder. But, however the rule laid down in Parker's Case came about, it has been followed for a long time, and we are not...
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