Zwicker v. State , 27 Tex. Ct. App. 539 ( 1889 )

Hurt, Judge.

Appellant was placed upon trial under an indictment for murder in the usual form. The jury returned into court this verdict: “We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for the period of his natural life.” This verdict was received by the court, and the jury discharged.

Our Assistant Attorney General confesses error, because article 60? of the Penal Code provides that when a party is convicted of murder the jury shall specify in their verdict the degree of that offense of which they convict the defendant. This the verdict fails to do. That this is essential to a valid verdict in convictions for murder is too well settled to require citation of authorities. For this defect in the verdict the judgment must be reversed and the cause remanded for another trial.

But the Assistant Attorney General suggests the propriety of the court passing upon two questions presented by the record. First. The court charged the jury that “the defendant is presumed by the law to be innocent until his guilt is established by competent evidence to the satisfaction of the jury beyond a reasonable doubt, and if you have on your minds,, arising from the evidence, a reasonable doubt as to the guilt of the defendant, you will find him not guilty.”

Counsel for the defense objected to this charge upon two grounds: First. Because it requires either the State or the defendant to introduce affirmative evidence of defendant’s innocence. Second. Because a reasonable doubt may arise from a want of evidence as well as from evidence introduced before-the jury.

We have carefully examined the opinions of this court bearing upon this question, but find no judgments of reversal because of such a charge. The cases of Smith v. The State, 9 Texas Ct. App., 150; Blocker v. The State, Id., 279, and Wallace v. The State, Id., 299, were reversed because the charge required the jury to believe the accused innocent.

The case of Massey v. The State, 1 Texas Ct. App., 563, may be relied upon in support of the objections of appellant. In that case the court instructed the jury: “If you have a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal; but it must be a reasonable doubt arising from and growing out of the evidence before you, and not an unreasonable doubt not growing out of the evidence.’’ Upon this charge Presiding Judge Ector remarked: “A reasonable doubt, such as would entitle the defendant to an acquittal, need not necessarily arise out of the testimony; it may be the result of a want of testimony sufficient to satisfy the mind.” The judge advises all trial judges, in their charges upon this subject, to follow the exact language of the statute and not to attempt-any explanation. The judgment in that case was not reversed because of the charge commented upon. It will be seen that the charge given in the Massey case and the one under discussion are not alike in form or substance.

Back now to the first objection. This charge does not require the introduction of exculpatory evidence, nor is it calculated to impress the jury that the guilt of the accused is established beyond a reasonable doubt because there is no exculpatory evidence introduced before them. Nor does it, as was done in the cases referred to in 9 Texas Court of Appeals, place in the scales the guilt and innocence of the accused.

Second. It is true that a reasonable doubt may arise from a want of sufficient criminative facts to establish guilt, and it is contended that the jury may have construed the charge as requiring them to reach the conclusion that the accused was guilty beyond a reasonable doubt, because there was no evidence of innocence, when, in fact, the criminative facts were not sufficient—did not have such probative force. We do not think the charge calculated to have such effect.

A is placed on trial for murder; there is no evidence against him. The court instructs the jury that the defendant is presumed by the law to be innocent until his guilt is established by competent evidence to their satisfaction beyond a reasonable doubt. In this the jury are very clearly told that as defendant is presumed innocent, his guilt must be established—proved by competent evidence—evidence which establishes his guilt— criminative evidence. To what certainty? To their satisfaction beyond a reasonable doubt. Taking this charge as a whole, no one of ordinary sense could infer from it that he could reach the conclusion that defendant was guilty beyond a reasonable doubt, because there was no evidence of his innocence. We hold that the judgment should not be reversed because of the charge upon reasonable doubt, but would here again implore the trial judges to follow the words of the statute. (Code Crim. Proc., art. 727.)

The State introduced in evidence the confessions of appellant. There was proof that he had taken four or five drinks of whisky within six or eight hours before making the confessions. Counsel for appellant requested the court to instruct the jury "that if you find and believe from the evidence that defendant was so intoxicated at the time he made the confession as not to be able to understand what he was doing or saying, then you will not regard such confession as evidence against defendant.” This was refused and exceptions were reserved. There is no proof that appellant was drunk at the time the confession was made, except inference drawn from the fact of his taking the four or five drinks above referred to. On the other hand, the testimony of the sheriff places this matter beyond debate—showing clearly that he was not drunk. There was no error in refusing the charge.

Opinion delivered May 8, 1889.

But let us suppose that the evidence presented a case in which there was doubt as to whether the accused was mentally capable of understanding what he was doing or saying, because of drunkenness, and that such a charge should be requested and refused, would this be error? We have not had the question before us, but the writer is of the opinion that it would be. But this question is not here decided.

Because the verdict does not specify the degree of murder found, as required by the statute, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.