May v. State ( 1894 )

HURT, PRESIDING Judge.

Conviction of murder of the first degree, with the death penalty. Two matters require notice:

Were certain jurors disqualified because they, or either of them, had such an opinion as to the guilt or innocence of appellant as would influence them, or either of them, in finding a verdict1? We have carefully examined the bills of exception relating to each venireman, and are of opinion that no juror who served was disqualified because of such an opinion. We have tested them by the rules laid down in the Rothschild case, 7 Texas Criminal Appeals, 519, and other cases on the same line.

The court in its charge alluded to robbery. This was objected to by appellant. The charge did not permit the jury to convict appellant of either of the degrees of murder if they believed that the homicide was committed in the perpetration, or attempt at the perpetration, of robbery, but merely defined “robbery.” The facts of the case establish beyond doubt that the murder was committed in the attempt to commit robbery, and the court should have instructed the jury, that if such was the case, appellant would be guilty of murder of the first degree. Sharpe v. The State, 17 Texas Crim. App., 486. The writer dissented in the Sharpe case, because robbery, or an attempt at robbery, had not been alleged; but the Sharpe case is the law of this State, binding upon the trial courts.

The court below gave all the instructions requested by appellant, and also submitted to the jury the question — the vital issue- — namely, the condition of appellant’s mind at the time he shot and killed the deceased, requiring the jury to believe beyond a reasonable doubt that all the essential elements of murder upon express malice existed before they could convict of murder of the first degree.

Appellant testified; swore that the conspiracy was entered into at a certain part of the country, and not in the penitentiary. The State proved, over objection of appellant, that he had stated that it was formed by Benningfield and himself while they were in the penitentiary. This was competent evidence. It went to his credit. If he lied about tbis matter, be may have lied wbeu be stated that tbe shot was an accident; that be shot at no one until after be left tbe train, etc.

Tbe record discloses a well-formed plan to rob tbe train; to rob it at all hazards; to murder all opposing, if necessary to effect tbe robbery. In fact, from tbe acts of appellant, we believe that tbe plan contemplated murder at tbe first step to accomplish tbe main object— robbery. Appellant has bad a fair trial, and richly deserves bis fate.

Tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.