Canterberry v. State , 101 Tex. Crim. 550 ( 1925 )

We discuss only a matter called to our attention by appellant's motion which was overlooked in our former opinion.

After defining murder and applying the law as it related to that charge the court told the jury if they found appellant guilty of any degree of homicide but had a reasonable doubt as to whether it was murder they would give appellant the benefit of the doubt, acquit him of murder and proceed to consider whether he was guilty of manslaughter. Then follows a charge explaining when homicide would be manslaughter. In applying the law as to that offense the court instructed the jury if by reason of the things enumerated appellant's mind was disturbed or excited to such extent as rendered it incapable of cool reflection and while in such state of mind he 'struck' deceased they would find him guilty of manslaughter. As this charge appears in the record before us the court omitted to tell the jury if appellant struck deceased and "killed him" under the circumstances related he would be guilty of manslaughter. No exception was taken to the charge by reason of the omission. The question for the first time is raised here, it being asserted that such omission is a fundamental error of which this court should take cognizance even in the absence of exception to the charge. As supporting this contention appellant cites the cases of Debth v. State, ___ Tex.Crim. Rep. ___ 187 S.W. 341; Moore v. State, ___ Tex.Crim. Rep. ___206 S.W. 683; Grant v. State, ___ Tex.Crim. Rep. ___127 S.W. 173; Barrios v. State, ___, Tex.Crim. Rep. ___ 204 S.W. 326; Pitts v. State, ___ Tex.Crim. Rep. ___ 210 S.W. 199; Flores v. State, ___ Tex.Crim. Rep. ___ 216 S.W. 170. Middleton v. State, ___ Tex.Crim. Rep. ___ 217 S.W. 1046. Examination reveals that in all of the cases referred to the court either authorized a conviction for an offense not charged by the indictment, or authorized the infliction of a greater punishment than that provided by statute. If the charge complained of here stood alone, it might present serious question, but the charge as a whole could not possibly have misled the jury. Immediately following the paragraph complained of the court tells the jury the instrument or means by which ahomicide is committed may be taken into consideration in judging of the intent of the party offending, and although they might believe that appellant had killed deceased by striking him with a piece of iron or a stick of wood, yet if said instrument was not likely to cause death, the jury could not presume that appellant designed to kill deceased unless they found from the evidence beyond a reasonable doubt that from the manner in which it was used such intention evidently appeared. In another paragraph the jury were instructed if they found appellant killed deceased but further found that he did so by striking him with a piece of iron or stick of wood and the jury had a reasonable doubt whether from the manner in which the said instrument was used the intention to kill evidently appeared they could under such circumstances find appellant guilty of an aggravated assault only. Furthermore, the evidence leaves no doubt that the death of deceased was occasioned by the blow struck by appellant. He says in his confession that after striking deceased he dragged him on the railroad track in order that he might be run over by a train. A train did later mutilate deceased's body, but a witness who examined it immediately states that the body was perfectly cold and that deceased appeared to have been dead some three or four hours before the train struck him. By Art. 666, C. C. P., Rev. of 1925, (formerly Art. 743) we are forbidden to reverse a judgment for errors in the charge unless it appears from the record that the error was calculated to injury the rights of the party on trial or unless it appears from the record that he has not had a fair and impartial trial. It is apparent that the matter complained of was an inadvertent omission from the charge which doubtless would have been promptly remedied by the insertion of the proper words if the omission had been called to the court's attention by exception. Viewing the evidence and the charge as a whole we can not conceive that the jury could have possibly been misled into believing the court had authorized a conviction for manslaughter, unless they believed the blow struck by appellant resulted in deceased's death. For the reasons stated we think the contention of appellant that the charge in question should be held fundamental error can not be sustained.

The motion for rehearing is overruled.

Overruled.