Wilson v. State , 29 Tex. 240 ( 1867 )

Donley, J.

At the request of counsel representing the State, the court charged the jury that if appellant was the employer of the slave Hat, and, as such, inflicted or had inflicted greater chastisement than was necessary under the circumstances, or used or caused to be used unusual instrunaents in punishing the slave, then appellant could be convicted of the crime of cruelty to a slave, and punished by fine not less than $100 and not exceeding $2,000. The jury returned a verdict of not guilty of murder, but guilty of cruel treatment, and assessed the highest pecuniary fine against the defendant authorized by law. The defendant moved the court to set aside that portion of the verdict finding him guilty of cruel treatment and assessing a fine against him; also moved in arrest of that portion of the judgment assessing a fine against him. The motion was overruled.

By article 630, Code of Criminal Procedure, it is provided, that where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree, (naming it,) but guilty of any degree inferior to that charged in the indictment. , By article 631 it is provided, that “ certain offenses include different degrees: (1) murder, which includes all the lesser degrees of culpable homicide.”

The verdict does not find the defendant guilty of a homicide at all, and it is clear that the judgment rendered in this case is not warranted by the paragraph of the article cited. Paragraph 6 of same article provides, that every offense against the person includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law. If a case shall arise in which a party has made an unlawful, felonious assault on another, inflicting a wound, and death follows the wounding, but from the evidence the jury are unable to say that the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault was made with the intent of taking life, a case may be presented authorizing the courts to punish for the assault, with the intent to commit murder, upon an indictment charging the commission of the offense. The record, however, does not present such a case, and its discussion would be premature at this time.

The jury do not find the defendant guilty of the offense alleged against him, nor do they find him guilty of an attempt to commit that offense. He is not found guilty of a felony, but of a misdemeanor. The fine being the highest punishment that could be inflicted upon the defendant for the offense of which he is convicted, and there being in the record no statement of facts, induces the belief that the acts of the defendant were in gross violation of law, probably meriting a much higher penalty than was adjudged against him.

The verdict, in effect, finds that the acts of the defendant were illegal and in violation of law. It is not alleged that such finding was not warranted by the facts in evidence. If the chastisement of the negro was so severe as to cause death, it is believed that the lesser was merged in the greater offense. By Art. 674, O. & W. Dig., (Penal Code,) it is provided that, “If by reason of abuse or cruel treatment to a slave death shall result, the offense is murder.” The verdict finds that the defendant was guilty of cruel treatment. The law cited is, that if death ensue, the offense is murder. If, then, the facts show a case of cruel treatment, and death resulted from those acts, it would be murder; and we can conceive of no rational ground upon which the jury might return such verdict, except it be, that from the evidence, while they believed the chastisement to have been unreasonable and cruel, they doubted whether the chastisement caused the death.

However unwilling we may be to disturb a verdict and arrest a judgment inflicting a penalty however inadequate to the offense alleged, and to permit the violator of law to go acquitted of all punishment, we must find in the law authority for any such judgment as shall be made; and we know of no warrant in the law to impose a pecuniary penalty on trial of a charge for murder. ,

Human life nannot be held so cheap that a party wrongfully depriving another of it may be discharged on paying a fine to the State, as is believed was done in the earlier history of our ancestors in certain cases of homicide. (4 Black. Com., 193.)

A verdict of not guilty being returned by the jury as to the offense charged, and the defendant not being found guilty of any homicide, a judgment discharging the defendant should have been rendered on the verdict. This court will now enter such judgment as sho.uld have been rendered by the district court.

The judgment is reversed, and the appellant

Discharged.