Clay v. State , 75 Tex. Crim. 387 ( 1914 )

Appellant killed her husband under circumstances, as shown by the State, upon which the court submitted only the theory of manslaughter. The jury gave her five years. The court also submitted her theory of the case; that is, self-defense. There was no objection to this charge urged by appellant, though she asked one special charge. This, in effect, if given would have informed the jury if there was a reasonable doubt arising on the facts between the issue of manslaughter and self-defense appellant would be entitled to the benefit of the doubt. This was not given by the court. There is nothing to indicate at what time this charge was asked, whether before the court read the charge to the jury or afterward. Nor is there anything in the record showing that exception was reserved to the court's charge before being read to the jury. Therefore, under the late statute this matter can not be revised. Even if it could be, we hardly think the matter was of sufficient importance to require a reversal. The court gave the jury an instruction on presumption of innocence and reasonable doubt. This general charge may not always be sufficient. Sometimes where the case is tried upon critical lines and is so presented, an omission to give this charge between the degrees of homicide might result detrimentally to the defendant. In such case it should be given, and it might become material error not to give it. But anyway there were no exceptions reserved to the charge before being read to the jury, and it is not shown this charge was asked before argument.

It is contended that the evidence is not sufficient to support the finding of the jury. The State's case discloses ample evidence. The defendant's case presented the issue of self-defense. The jury has the right to solve these matters, and where there is a conflict in the testimony — that for the State supporting the conviction and that for the defendant justifying an acquittal — the jury's finding is conclusive.

There is also a suggestion in the motion for new trial that the jury should have brought in a verdict under the indeterminate sentence law. The jury finds a term of years and the court fixes the punishment from the lower to that fixed by the jury. The jury does not fix the indeterminate sentence.

There is another question raised in the motion for new trial with reference to the absence of the witness Crooker and failure of the court to suspend the trial until he could be brought into court. This is a ground of the motion for new trial and no facts are stated in connection with it and no bill of exceptions verifying the matter, therefore it can not be considered.

As the record is presented the judgment will be affirmed.

Affirmed.

ON REHEARING. November 25, 1914.