Monroe v. State , 23 Tex. 210 ( 1859 )

Roberts, J.

The main ground of error relied on, is in, refusing a new trial, because the verdict was not warranted by the evidence.

The evidence is conflicting in its tendencies, and imposed on the jury the necessity of both determining upon the credibility of the witnesses, and of reconciling the facts, as best they could. The exculpatory testimony was given, mainly, by Coombs and Sweeny; the former, a man hired to work by defendant, and the latter, her son, about fourteen years of age.

Their evidence, intrinsically considered, may be liable to objection. Without entering into an extended discussion of the facts, which would authorize the jury not to attach great importance to their testimony, it will suffice to advert to one circumstance in connexion with it. They profess to have been about the house of defendant during the day the girl died, and to be cognisant, generally, of what was going on in relation to her. They give no account of her being whipped on that evening, nor do they account, in any credible manner, for the cries of distress that were uttered there. That this girl was whipped, and "that by the defendant, or with her assent, on that evening, there can be, as we believe, no shadow of doubt. The stripes found on her back; the cries and altercation heard by Purvis, so distinctly, at a considerable distance, and which were heard, though not so distinctly detailed, by another witness, force the mind to the conclusion that it did take place; and that, being once established, the exculpatory influence of Coombs’ and Sweeny’s testimony is destroyed. What was she being whipped for, after it was known that she had taken poison ? That question cannot be answered, when considered in reference to the desperate ill-will, and brutal treatment of defendant towards this girl, habitually exercised, otherwise than by implicating her in the guilt of the murder of this girl. Upon that proposition, the mind of the jury could rest satisfactorily. As to what were her purposes in doing or instigating the deed, and as to how it was done, the mind may possibly hesitate as to a definite conclusion. And hence, the charge given by the court, as to murder in the second degree, was not inappropriate; and hence, also, we may account for the jury having found her guilty of murder in the second degree-

As to the objection taken to the charge, that it was calculated to mislead the jury, by requiring them to find the defendant guilty of murder, if not of the first, certainly of the second degree, we are of opinion, that it is not well taken. The court had, with great precision and clearness, instructed the jury as to the Character of doubt that should acquit the defendant altogether ; and also, that would reduce the homicide from murder in the first, to murder in the second degree. And after having done this with such manifest care, the jury could hardly have believed, or suspected, from the clause in the charge objected to, that the court was undertaking to determine for them that there was no doubt in the case, upon which they could rest an acquittal. Experience of criminal trials shows, that juries in this country are not ready in suspecting that their legitimate powers are attempted to be taken away from them; nor are they any more ready to yield to an improper usurpation, had it been attempted. We think, in this case, it was neither done, nor attempted to be done; but, on the contrary, that no reasonable men, who might have been empannelled to try the cause, could have inferred, in the slightest degree, from the charge, that they were not at liberty to find the defendant not guilty of any offence, if the facts dictated that verdict to their judgment and consciences.

As to the juror, White, who was pronounced to be competent by the court, we do not think he had formed that sort of opinion, as that the court could adjudge that he was disqualified. (Code Crim. Proc., Art. 579.)

A ground of the motion for a new trial is founded on an expression of Dunn, one of the jurors, made by him before the trial, that “ he thought she, (defendant,) ought to have been hung twenty years ago.” This, as it appears, was prompted by a remark made by the witness, upon her passing by them, that he, (witness,) thought she ought to be hung. It was said in a loose, jocular way, and so far as the juror was concerned, had no reference to this case. If taken to have been seriously made, it conveys the general idea, entertained by him, that she was a .very bad woman. . Such general idea is not, necessarily, a ground of disqualification ; if it were, notoriously bad men never could be tried, for want of qualified jurors.

After a careful examination of the record, we find nothing in the evidence of the physicians and other witnesses for the state, upon which the verdict is based, which is calculated to raise a suspicion of their integrity, or intelligence, in reference to the matters of which they speak; we find nothing in the mode adopted of finding a verdict, at all objectionable; we find nothing in the charge objected to, calculated to produce a wrong impression ; and have no reason to believe, that the defendant did not have a fair trial in every way, and was fairly convicted, while being fully, and doubtless ably, defended, by counsel of her own selection.

Judgment affirmed.