Betts v. State , 60 Tex. Crim. 631 ( 1910 )

Appellant was tried in the court below on an indictment which charged him and Eva Betts, his wife, with the murder of Rozella Betts, their female child, about two years old. He was convicted of murder in the second degree, and his punishment assessed at thirty-five years confinement in the penitentiary.

1. This is the second appeal. The first appeal is reported in 57 Tex.Crim. Rep..

2. The evidence briefly stated shows that beginning about the first day of November, 1908, up to about two weeks before the death of deceased, which occurred on the 9th day of December, 1908, appellant with a waist belt and with his hands cruelly whipped the deceased. The evidence shows that these whippings did not cause the death of deceased, but had a tendency to lessen its vitality and resisting powers. One theory of the State was that the appellant by the use of a hair brush or his hands beat the deceased in such a manner that it caused the bursting of blood vessels on the brain, which formed a blood clot and this causing the death of the deceased. Another theory was that by said means he inflicted said injuries in a cruel manner. Dr. Day, one of the physicians who made the postmortem examination, testified that in his opinion the deceased died of strangulation; that there were some few blood clots upon the brain caused evidently by the bursting or breaking of some of the blood vessels of the brain; that in his opinion the death of the child was not the result of the blood clots. These brain clots were not very large, some the size of a pea and some may be a little larger. That he would not undertake to say that the clots resulted from the jarring of the brain as the result of the chiseling the skull, nor that the blood of the brain was sufficiently coagulated at the time to prevent a hemorrhage by reason of the chiseling. The evidence shows that there were two postmortem examinations on the body of the deceased, one in the morning — an external one — and one in the evening about two o'clock of the day of the death of deceased. That at the last examination the doctors removed the scalp from the child's head and found some ten or twelve bruises or contusions on the skull. That after this they removed the skull of the deceased by means of a chisel and mallet. Appellant proved by several witnesses that his general reputation for peace and quiet was good, and that he was kind and affectionate to the child. This is not all of the testimony, but we think is sufficient to present the questions herein discussed. It was the theory of the State that appellant killed the child either with his hands or with a hair brush about two and a half inches wide, and eight or nine inches long, and weighing about three and one-fourth ounces. The case against appellant is one of circumstantial evidence. No one saw the killing.

3. We are of opinion that the indictment is a good one for the reasons stated on first appeal. Betts v. State, 57 Tex. Crim. 389.

4. Bill of exceptions No. 2. The State was permitted over appellant's objection to introduce in evidence an affidavit and information charging appellant with committing an aggravated assault upon Eva Betts (the judge certifying that the evidence showed that Eva Betts and Rozella Betts was one and the same person) on the 10th day of November, 1908, and also so much of the judgment of the court as showed the trial of the cause and defendant's plea of guilty therein. There was no error in this. Waters v. State,54 Tex. Crim. 322, 114 S.W. Rep., 628.

5. Bill of exceptions No. 4. Shortly after the death of deceased Dr. Gordon examined the dead body of the deceased and testified minutely and in detail as to the condition of the head and body of deceased, including the contusions that appeared on the head of deceased. After so testifying the State exhibited to the witness the said hair brush, and which was shown to be the one found by the sheriff at the house where deceased died and shortly after her death, and over the objections of appellant he was permitted to testify that in his opinion deceased could have been killed with said hair brush, and that in his opinion the bruises which witness found on the head of deceased could have been inflicted with said hair brush. In this there was no error. Medical experts are permitted to give their opinions that certain instruments are such as would produce death as well as certain wounds were inflicted by certain instruments. Waite v. State, 13 Texas Crim. App., 169; Banks v. State, 13 Texas Crim. App., 182; Kirk v. State, 37 S.W. Rep., 440.

6. Bill of exceptions No. 5. There was no error in permitting Dr. Gordon to testify that in his opinion the whipping shown to have been inflicted by appellant on deceased, shortly prior to her death, would have the effect to weaken the vitality and lower the resisting powers of deceased, and thereby render deceased more liable to bursting of a blood vessel on the brain. See last authorities.

7. Bill of exceptions No. 6. Sheriff Cox was permitted to testify as to the character, weight, length and size of a waist belt exhibited in evidence by the State. The evidence shows that this belt is the one used by appellant in whipping deceased shortly prior to the homicide. We think it was permissible for the State to show the character, weight, length and size of said waist belt.

8. Bill of exceptions No. 7. Sheriff Cox testified for the State that he went to the house where deceased was a few minutes after her death, and that he found the said hair brush exhibited in evidence in the room in a broken condition, and part on the washstand and the other part on the floor; that it appeared to be freshly broken. It is of wood with a metal rim around the edge, about two and one-half inches wide, length eight or nine inches, and weighed three and one-fourth ounces. After this testimony the State introduced in evidence said hair brush. In this there was no error. The case was one of circumstantial evidence, and it was the theory of the State that appellant killed deceased with said hair brush.

9. As the court failed to instruct the jury pertinently and affirmatively on aggravated assault arising out of the alleged assault which caused the death of deceased, to which failure appellant excepted in his motion for new trial, and as we believe there was an error of omission in such failure of the court to so charge the jury, we will notice in the following portions of the opinion some of the questions which are likely to arise upon another trial.

10. Article 717 of the Penal Code prescribes: "The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed unless from the manner in which it was used such intention evidently appears." The court charged the jury that if they believed that appellant did unlawfully with implied malice aforethought kill Rozella Betts by then and there striking the said Rozella Betts with a brush or by then and there striking, beating and bruising the said Rozella Betts with his hands, or by either of said means, then to find the defendant guilty of murder in the second degree, etc. The court then gave in charge to the jury article 717 of the Penal Code, and then instructed the jury that if they believed from the evidence beyond a reasonable doubt that the defendant killed the deceased by striking her with a brush or by beating and striking her with his hands, or by either of said means, then they were instructed that if such instruments were not such as were likely to produce death it is not to be presumed that the defendant designed the death of the deceased. We believe that the court in charging on this branch of the case should have charged the jury affirmatively that if they believed that the instruments or means used by appellant in killing deceased were not likely to produce death, and the injury was not inflicted in a cruel manner, that appellant would not be amenable for the homicide unless he intended to kill deceased. Hill v. State, 11 Texas Crim. App., 456.

11. The court charged the jury that if they believed from the evidence beyond a reasonable doubt that the defendant with implied malice aforethought inflicted injury on the deceased in a cruel manner with a brush or with his hand or with either of them, and if said instrument or means or either of them were not likely under ordinary circumstances to produce death, but the jury further believed that death did result therefrom, then the defendant would be guilty of murder in the second degree. We believe that the court, having charged on murder in the second degree, should have charged on manslaughter. Article 718 of the Penal Code prescribes that: "If any injury be inflicted in a cruel manner though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder according to the facts of the case." Now, if appellant is guilty of murder under the facts, on this phase of the case, it is on account of the fact that with his hands or with the said hair brush he inflicted injury in a cruel manner upon the deceased. If appellant inflicted the injury with his hands or with said brush in a cruel manner, although it was not likely under ordinary circumstances to produce death, the killing might not be murder. It might be manslaughter under the statute cited. If the injury was inflicted in a cruel manner and for the purpose of killing, of course, it would be murder, but if not for the purpose of killing it might be manslaughter. Taylor v. State,41 Tex. Crim. 148. So we think the jury should have been told that if the injury was inflicted in a cruel manner though with an instrument not likely under ordinary circumstances to produce death, but there was no intention to kill, that appellant would be guilty of manslaughter.

12. The court charged the jury that if they believed that appellant on or about the 9th day of December, 1908, was an adult male and that Rozella Betts was then and there a child, and that appellant did then and there strike, beat and bruise the said Rozella Betts unlawfully . . . to find him guilty of an aggravated assault. Appellant in his motion for new trial excepted to this portion of the charge because it did not specifically limit the jury's consideration to the particular assault, if any, that may have resulted in the death of the deceased, and had the charge been so formulated as to specifically call the jury's attention to the assault resulting in death, the jury might have found appellant guilty of an aggravated assault. If appellant killed the deceased with no intent to take life, and not in a cruel manner, then under the above authorities he would not have been guilty of the homicide, but would have been guilty of aggravated assault, he being a male and deceased being a child. So we believe that the court should have charged the jury affirmatively that if they believed from the evidence that the defendant did inflict injury upon the deceased which caused her death, but not in a cruel manner and with no intent to take the life of the deceased, that he would be guilty of an aggravated assault, he being an adult male and deceased being a child, and for this failure in the court's charge we think it is error for which the cause should be reversed.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

McCord, Judge, not sitting.