Mitchell v. State ( 1928 )

In the indictment it is averred that the appellant killed Pat Murphy "by then and there striking the said Pat Murphy in some way and manner to the grand jury unknown and with some substance to the grand jury unknown."

On appeal for the first time the point is made that the record is void of proof of the truth of the averment quoted, and upon that ground a reversal is sought. If, in fact, the means of death are unknown to the grand jurors, an indictment drawn in the form stated is sufficient. Sanchez v. State,46 Tex. Crim. 179; Hughes v. State, 60 S.W. Rep. 562; Walker v. State, 14 Tex.Crim. App. 609. A careful examination has been made of the various precedents relied upon by the appellant, as well as a number of others. Among them are the following: Monk v. State, 11 S.W. Rep. 460; Mason v. State, 168 S.W. Rep. 115; Middleton v. State, 217 S.W. Rep. 1046; Jorasco v. State, 6 Tex.Crim. App. 241; Williams v. State, 13 Tex.Crim. App. 518; Brewer v. State, 18 Tex.Crim. App. 456; also Walker v. State, 94 Tex. Crim. 418; Carr v. State, 80 Tex.Crim. Rep.; Forest v. State, 300 S.W. 51; Wharton on Homicide, 3rd Ed. Sec. 563; Wharton's Crim. Law, Sec. 658; Bishop's New Crim. Proc., 2nd Ed., Vol. 2, Sec. 552.

The averment of an indictment that the means causing death was unknown to the grand jury is a material allegation, the substance of which must be proven as pleaded. This requirement, however, is deemed sufficiently met if the development of the facts on the trial shows the means of death to be uncertain. It is otherwise, however, if such facts raise an issue as to whether the means of death were known or could have been known to the grand jurors by the exercise of reasonable diligence. In such case proof must be made of the lack of knowledge of such fact by the grand jurors, and that reasonable diligence was used to ascertain same.

Some days after the death of the deceased there was found about the premises of the appellant an instrument called a "black-jack," which was made out of a common garden hose. Near the place where the body was found there was a piece of iron pipe about one inch thick and about five feet long. The deceased was missed on the 27th of September. About the 30th of that month his naked body was found in the Pecos River weighted down by two large rocks. The body was in a bad state of decomposition and was very offensive. It was examined by a physician who testified that there was a depression in the cranium, and on the inside there was a blood-shot area. The scalp was not broken but badly swollen. An external examination did not reveal any evidence of violence, but in cutting into it, it showed a bruising of the vessels. There was enough depression to produce death and it would produce absolute unconsciousness. Without going into the cranial vault (which was not done) it could not be declared with certainty that death resulted from the injury mentioned. Ordinarily it would do so. The doctor expressed the opinion that the instrument with which the injury mentioned was inflicted was soft and heavy. There was handed him an instrument called a "black-jack" or "sap." He said that the injury was such as might have been inflicted with the instrument mentioned; that any soft-loaded instrument with shot or lead or anything in it — an old sock or anything — with enough weight or enough cushion not to have a cutting contact, might break the skull without breaking the tissue. The doctor had had no previous experience with a body in the same condition, nor with an instrument of the nature mentioned. He had seen wounds inflicted with similar instruments but none in his local practice. He would not say that the instrument caused the wound. He did not make a post-mortem examination to ascertain whether death resulted from drowning, but expressed the view that death took place before the body was placed in the water.

The prosecution was upon circumstantial evidence, and the testimony is such as justified the verdict implying that the deceased was killed by the appellant and that by some means the condition described by the physician was caused by the appellant. The evidence adduced upon the trial fails to disclose with certainty the kind of instrument used in killing the deceased, and does not indicate that the grand jury was aware of the exact means of causing the death, nor that in failing to ascertain it the grand jurors were wanting in diligence.

The other questions arising from the record were sufficiently discussed and properly decided on the original hearing.

The motion is overruled.

Overruled.