Wood v. State ( 1907 )

Appellant was convicted of murder in the second degree, and his punishment assessed at sixty-five years confinement in the penitentiary; hence this appeal.

During the trial appellant objected to the testimony of the State's witness Shoemate, as follows: "That at the time of the killing or immediately afterwards, the witness heard a negro, whose name he did not know, say to the defendant, ``That man is cut to death,' and defendant said in reply, ``I have already got three and if that son of a bitch dies, it will make four.' This was objected to by appellant because said testimony was immaterial and prejudicial to his rights in that the jury might reasonably infer from said testimony that the defendant had heretofore been guilty of killing four men, including the deceased; further, because the testimony of defendant shows that he had never been guilty of any other homicide except the killing of deceased." The court explains this bill by stating at the time this testimony was admitted the defendant had not then testified; that the testimony was admitted as an admission of defendant that he had cut deceased and the allusion to others was so connected with the admission as that it could not be eliminated, besides the witness, Shearer had already, without objection, testified to substantially the same statement. We think the explanation given by the court satisfactorily stated the reasons for the admission of said testimony. This testimony could be used by the State to show the animus of appellant, and to show his malice. The fact that he contradicted this by his own evidence would not render it inadmissible.

In motion for a new trial appellant objected to the charge of the court on temporary insanity produced by the recent use of ardent spirits. We understand this charge to be in accord with our statute on the subject. See Evers v. State, 31 Tex. Crim. 318. The court's charge also on insanity not produced by the recent use of intoxicating liquors was correct. We have examined the record carefully, and in our opinion there are no reversible errors. The testimony fully sustains the verdict, and the judgment is affirmed.

Affirmed.