Champ v. State , 32 Tex. Crim. 87 ( 1893 )

HURT, Presiding Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed by the jury at five years in the penitentiary.

The statement of facts contains ample proof of murder in the second degree, proof of manslaughter, and of self-defense. We have never examined a statement of facts in which there was so. much conflict in the evidence, or, as we think, more perjury. Murder in the second degree, manslaughter, and self-defense being presented, was the law correctly given in charge to the j ury upon these phases of the case ? Appellant requested one instruction, which was given. The record contains no bill of exceptions to the charge.

Upon motion for new trial, paragraphs 9 and 10 are complained of, because the things constituting adequate cause are limited to the injury of appellant. We do not think the paragraphs are subject to these contentions; but if they were, paragraph 11 cures the supposed error, rendering it harmless.

Paragraph 12 is complained of, the contention being, that it improperly instructs the jury upon the subject of cooling time. That this objection is well taken is very doubtful. But concede it to be incorrect, the error, if any, is entirely eradicated when read in connection with paragraph 13. The charge should be construed as a whole.

Upon the trial appellant proposed to prove by Ratcliff (he having examined the fatal wound on deceased), that in his opinion, judging from the direction and bearing of the wound, the same must have been made by some one directly in front of deceased. The proposed opinion of Rat-cliff was rejected by the court, and appellant reserved his bill of exceptions. In this there was no error. A witness, though an expert, can describe the wound, giving its size, location, etc., but not his opinion as to the position of the parties.

Regarding the punishment, the court instructed the jury, if they “ found appellant guilty, his punishment should be confinement in the penitentiary for any term not less than fives within your discretion,” “ five” being-spelled “ fives” and “ years” being omitted; and upon this ground it is contended that the judgment should be reversed. There was no exception taken to the charge at the time, because of the omission and the bad spelling. The jury gave appellant the lowest term, five years. Were they misled by this charge to the injury of appellant ? Evidently they were not.

The jury accidentally separated for a few minutes, without the slightest probability of being influenced thereby in their finding. There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.