Oates v. State , 51 Tex. Crim. 449 ( 1907 )

Appellant was convicted for murder in the first degree, and his punishment assessed at death.

This is the third appeal of this case, the former appeals being reported in 12 Texas Ct. Rep., 921, and 16 Texas Ct. Rep., 493.

Appellant's first bill of exceptions is to the refusal of the court to quash the indictment. There are two counts in same, one charging murder by express malice, and the other in the perpetration of robbery. The case was submitted to the jury upon the second count. Appellant's objection is that it does not charge who was robbed, or how or what he was being robbed of. The indictment is in the form laid down by White in his Annotated Penal Code. See section 1254; and said form is supported by all the authorities of this court. See Wilkins v. State,35 Tex. Crim. 525; Crews v. State, 34 Tex.Crim. Rep., and Hedrick v. State, 40 Tex.Crim. Rep.. In the latter case the question is reviewed at some length, and all of appellant's insistences discussed.

Appellant's second bill of exceptions is to the action of the court in permitting the State, over appellant's objection, to prove that Mrs. Aronoff was excited when appellant was brought before her. In the trial of the case appellant took the position that when defendant was first presented to her she did not recognize him. The State to account for her conduct offered proof to show her weak and prostrated condition, and that she was not able to stand up and had to be assisted by others. The testimony of the State was a rebuttal of the proper deduction to be drawn by appellant from a failure to recognize the defendant in the first instance.

Appellant objected to the following charge of the court: "If any person in the perpetration or attempt to perpetrate a robbery upon another shall take the life of such other, he shall be deemed guilty of murder, and murder committed under such circumstances is murder in the first degree," the objection to said charge being that the same was not the law, because it makes all killing under such circumstances murder without regard to whether such killing was upon malice or not. This proposition has been settled against appellant by a long line of authorities above cited, and also by the following authorities: Walker v. State, 7 Texas Crim. App., 245; Lucas v. State, 19 Texas Crim. App., 79; Smith v. State, 31 Tex.Crim. Rep.; King v. State, 34 Tex.Crim. Rep., and numerous other authorities. The charge of the court defines malice, malice aforethought and murder in the first degree.

Appellant further complains that the court erred in telling the jury the penalty for robbery by the use of firearms. It was not necessary for the court to do this in his charge, but it certainly could not be any reversible error to do so since appellant was not being tried for robbery but for murder in the perpetration of robbery. The evidence in this case conclusively establishes appellant's guilt. For collation of same see previous opinions of this court on this case above cited. It shows a cruel, wanton and reckless killing and a dastardly effort to rob a helpless man who was pursuing the peaceful vocation of running a store in the City of Dallas.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. June 28, 1907.