Gardenhire v. State

Winkler, J.

This is an appeal from a judgment of conviction of murder in the second degree, on an indictment which charges the appellant and another with the murder of one James Parker, in the month of October, 1877. A motion for a new trial was made on behalf of the accused, in which numerous causes are set up in support of the motion. The motion was overruled.

Several errors are assigned as reasons why the judgment should be reversed. There is but one of the supposed errors complained of to which a bill of exceptions was taken on the trial below, so far as the transcript of the record discloses. From the bill of exceptions it appears that, after the names of those summoned on the special venire had all been called, and the venire exhausted, a jury had not been obtained, and that the court ordered the sheriff to summon additional jurors to complete the jury. The action complained of is, in effect, this, as set out in the bill of exceptions . “ Said additional jurors were brought in one at a time, without furnishing defendant with a list of said jurors.” It also appears that, at the time the original panel was exhausted, the defendant had had only two peremptory challenges. To this action exception was taken, for the reason, as stated, that he “ should and ought to have been furnished with a list of the additional jurors summoned, before they were presented for his acceptance or rejection.”

The judge signed the bill of exceptions, with this additional statement: “ That the jury were brought in as summoned, and the defendant did not exhaust his peremptory challenges.” It does not appear that any objection was made at the time to the manner of proceeding, or that the defendant asked to be furnished with the names of the additional jurors summoned. If he had requested a list of their names before proceeding to complete the formation of the jury, it would doubtless have been furnished him by the court. Yet, as matter of right, the law did not entitle him to, or require that he should be furnished with, a list of their names. This was expressly decided by this court in Harris v. The State, decided at the present term, ante, p. 97. Several questions of practice under the jury law of 1876 have been decided by this court, which see collated in Johnson v. The State, 4 Texas Ct. App. 268, with which the present ruling is in harmony, though different questions are there decided.

There is nothing in the record to show that the defendant made any objection to the proceeding at the time it occurred. The subject is mentioned in the motion for a new trial, which was filed on August 28, 1878, when the bill of exceptions was not filed until August 29, 1878; so that, in point of time, so far as can be determined by the dates of filing, which are the only dates furnished by the record, the question was first raised on the motion for a new trial. It does appear that the jury was made up before the accused had exhausted his peremptory challenges, and it does not appear that any injury or prejudice to the rights of the accused was done by the action of the court in the formation of the jury. The rulings of the trial court in organizing a petit jury will not be reversed, unless they infringe the jury law or prejudice the accused. Ray v. The State, 4 Texas Ct. App. 450.

The principal grounds of complaint in the motion for a new trial, and in the assignment of errors, are general in their character, and do not point the court to the particular grounds of the objection, or to any particular rule of law or practice which has been violated; nor have they been elucidated in argument here by counsel for the appellant. Still, in a case of so much moment as the present, we feel called on to take any intimation which points to the record ; and not only so, but to examine with care the whole case as shown by the record, in order to determine the merits of the case and the legality of the conviction; and with greater care, if possible, than if the appellant were represented by counsel.

In the motion for a new trial, complaint is made that the court erred in its charge as the same was given to the jury, and in refusing to give certain special instructions asked by counsel for the accused. Several other matters are mentioned which should have been presented by bills of exception. From a careful examination of the charge given, in connection with the testimony adduced on the trial, we fail to discover any error of which the appellant can justly complain. The charge as to murder in the first degree, though substantially correct, is of no moment to the accused, he not having been convicted of that degree of murder. No material error is perceived in the charge on murder of the second degree. On the subject of manslaughter, and homicide in self-defence, the charge was as full and explicit as the testimony warranted, and fairly submitted to the jury the law by which they could determine whether the homicide was culpable at all or not, and if so, the grade of the offence, as well as the measure of punishment affixed to the different grades.

There was no necessity for the special charges, and no error in refusing them. There was no exception properly taken to the giving of the general charge, nor to the refusal to give the special charges asked by the accused. The jury were properly instructed as to the presumption of innocence and the reasonable doubt, not only as to the general question of guilt, but also between the different degrees, and also as to the credibility of the witnesses. We fail to discover any material error of commissiom or omission in the charge of the court.

It is stated as one of the grounds for a new trial, that the “ court erred in refusing to strike out the evidence of Dr. Barkley, for the reasons stated in the bill of exceptions.” If this ruling was invoked, and a bill of exceptions saved to the ruling, such bill of exceptions has not been incorporated in the record; and unless the question is so presented, it will not be revised on appeal. Foster v. The State, 4 Texas Ct. App. 246. Still, on an examination of the testimony of this witness, as set out in the statement of facts, we fail to discover any ground for objection to its admissibility. These are the only questions presented by the record, deemed necessary to be noticed specially.

The testimony is clear and uncontradicted that the deceased came to his death by a blow or blows inflicted upon his head by the appellant, which broke his skull, and produced death within a few days after they were inflicted; and there is no evidence tending to show that, at the time, the appellant was in any immediate danger of losing his life, or that the deceased was attempting to take, or possessed of the means of taking his life, or doing him any serious bodily injury. It is shown that, at the time he received the injury which deprived him of life, he was unarmed entirely, and not attempting any sort of violence against .the appellant.

Finding no such error in the proceedings as would warrant an interference with the verdict and judgment, the judgment of the District Court is affirmed.

Affirmed.