Neyland v. State

White, P. J.

Our constitution provides that in all criminal prosecutions the accused “ shall have compulsory process for obtaining witnesses in his favor. (Canst., Art. 1, sec. 10.) A subpoena is a compulsory process; and the mode and manner of its issuance, service and return, and penalties for disobedience of its mandate, are fully provided for in the Code of Criminal Procedure, from Article 477 to Article 486, inclusive. Article 479 declares the legal requisites of the service and return of the subpoena. It says:

“A subpoena is served by reading the same in the hearing of the witness. The officer having the subpoena shall make due return thereof, showing the time and manner of service thereof, if served, and if not served he shall sho w in his return the cause of his failure to serve it, and if the witness could not be found he shall state the diligence he has used to find him, and what information he has, if any, as to the whereabouts of the witness.”

As a general rule an officer’s return on process of every kind should state that he has performed what the mandatory part of the process required of him. And when the law requires and prescribes any particular forms of proceedings in the service, the return should show that they were specifically complied with, and should set them forth as fully and circumstantially as if they had been specially required in the mandatory part of the process.

In defendant’s application for continuance for absent witnesses, it is shown that the subpoenas issued had in several instances been returned by the sheriff indorsed simply, “not executed,” “not found.” This is not a compliance with the statute, and such negligence and failure of duty cannot be tolerated in any criminal case, much less where a defendant’s life is at issue. Ho doubt can be entertained as to the evident object and intention of the requirements of the statute. If the facts are stated in the return, the court will be the better enabled to act advisedly in the premises in determining whether the witness is accessible at all, and can probably be obtained if the continuance be granted; and, on the other hand, a proper legal return will also in many instances afford ample ground to the defendant for suing out the additional and more compulsory writ of attachment, to enforce the attendance. An officer receiving the subpoena must endeavor to execute it; he must state the diligence he has used to find the witness; and, if not found, he must furnish all the information, if any, which he has acquired as to the whereabouts of the-witness. Hone of these things are shown by a return “not found,” “not served,” “not executed.” For aught that appears from such a return, the witness may have been in the county, within easy reach, and could have been readily found if an effort had been made; and it may be a fact that, without trying to find him, the officer coolly pockets the process, and, the witness having failed to come upon him at the last moment, he eases his conscience and thinks to satisfy his official duty by a return of “not served,” “not found,” “not executed.” Such return is not legal, and it may in fact be as untrue as it is illegal. It may be more—it may deprive a defendant of his right to other more compulsory process. We are of opinion that such a return, where the evidence is shown to be 'material, authorizes a continuance to the same extend as though the process had not been returned. . It certainly should not be held to affect the diligence required of a defendant with reference to his further process; he should not be held responsible nor made to suffer for such gross dereliction of duty on the part of the officer.

In this particular case we do not say it was reversible error for the court, in consideration of the defective returns, to overrule the application for continuance, nor in the particular instances wherein the returns were defective can we say the court erred in overruling the motion for a new trial on account of the admissibility and materiality of the proposed testimony, considered in connection with the evidence adduced on the trial. Our observations upon this matter are induced rather by the fact that this is the first case in which this important subject has been called directly to our attention since the statute quoted was adopted as part of our Revised Code; and with a further purpose of calling the special attention of district judges and sheriffs to the importance of a strict observance of its provisions, and the consequent injuries likely to ensue from their non-observance.

Appellant was convicted of murder in the second degree. His counsel urgently insist that the charge of the court upon murder in the second degree is radically defective; that the court should have charged upon the law of manslaughter, for two reasons; first, because the law upon that subject is a part of and essential to a correct understanding of murder in the second degree; and second, because manslaughter was part of the law applicable to the facts proven. In effect, the first position assumed is that no charge upon murder in the second degree is sufficient under the statutory definition of murder unless it explains the law of manslaughter. Part of the definition of .murder, and an essential part, it is contended, is that portion of the statute which declares that “murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide” (Penal Code, Art. 605); and that, if this distinction is necessary to be drawn, then in every such case the law must be fully explained, and the jury be instructed upon negligent homicide, manslaughter, excusable and justifiable homicide, in order that they may readily recognize and intelligently discriminate the characteristic qualities which distinguish murder of the second degree from the lower grades of culpable homicide.

We do not concur in this view of the matter. A complete general definition of murder as a distinct substantive offense is plainly and fully conveyed by the language, “Every person with a sound memory and discretion who shall unlawfully kill -any reasonable creature in being, within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.” (Penal Code, Art. 605.) The other expression contained in the second sentence of said article, that “murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide,” is no part of the definition, and amounts to no more than a general rule, or the statement of an abstract proposition, prescribed by law for the purpose doubtless of aiding and guiding the court in determining whether the offense is murder or one of the lesser degrees of homicide, so that the charge to be given may be framed accordingly. It is a suggestion rather to the judge than a help to the jury in the performance of their functions. If there are no facts and circumstances tending to establish or creating a doubt as to whether the crime be murder or one of the lesser degrees, then there is no necessity or occasion for the court’s charge to distinguish murder from those degrees, and to attempt to do so would only tend to confuse the real issue to be determined, which is whether the party is guilty or not guilty of murder. It is by no means impossible to charge understandingly all the law of murder of the second degree, without explaining beforehand murder in the first degree, though this is ordinarily done for the purpose of distinguishing the difference between express and implied malice, the distinctive ingredients of the respective degrees. But on the other hand, if under the evidence the homicide could not be less than murder in the first degree, then there is no occasion to instruct the jury upon any of the other degrees or grades less than murder in the first degree. (O’Connell v. The State, 18 Texas, 244; Washington v. The State, 1 Texas Ct. App., 647; Hubby v. The State, 8 Texas Ct. App., 597.)

Neither is the court required, nor is it at all necessary, to charge upon manslaughter if the proof shows only murder in the first or second degree. Manslaughter is predicable alone upon the supposition of the existence of an adequate cause. (McKinney v. The State, 8 Texas Ct. App., 626.) Without some evidence of an adequate cause, it is not only unnecessary, but would be improper to charge upon manslaughter. ' (Daniels v. The State, 24 Texas, 389; Meyers v. The .State, 33 Texas, 525; Hudson v. The State, 40 Texas, 12; Jones v. The State, 40 Texas, 188; Boyett v. The State, 2 Texas Ct. App., 93; Halbert v. The State, 3 Texas Ct. App., 656; Grissom v. The State, 4 Texas Ct. App., 374; Roberts v. The State, 5 Texas Ct. App., 141; Berry v. The State, 8 Texas Ct. App., 515; Eanes v. The State, 10 Texas Ct. App., 421; Williams v. The State, 10 Texas Ct. App., 529; Hill v. The State, 11 Texas Ct. App., 456.) When the court has charged the law correctly in reference to the facts of the case as proved, it is not error to refuse to modify the charge and adapt it to a lower grade of offense, when there are no facts in evidence applicable to such charge in the modified form. (Mayfield v. The State, 44 Texas, 59.)

Counsel for appellant refer very confidently for the latest expression bf this court to the cases of Whitaker v. The State, 12 Texas Ct. App., 436, and Brunet v. The State, 12 Texas Ct. App., 521. In both those cases the charge given, in effect, made implied malice, or murder of the second degree, actually depend upon the absence of facts and circumstances sufficient to reduce the offense to manslaughter or negligent homicide, or which would excuse or justify the killing. This, as we have seen, is not a proper charge to be given where a lower grade is not involved. If it is given, however, when not demanded, we do not see how the jury is to understand and comprehend it unless the lower grades mentioned are explained, with the law governing them.

But it is said a charge upon implied malice or murder of the second degree cannot be given without explaining the lower degrees. We see no reason why, and in this very case before us, we think, with perhaps the omission of a single expression, the charge of the learned judge does present the law of murder in the second degree. His charge is as follows:

“Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.

“Murder is of two degrees, to-wit, murder of the first degree and murder of the second degree. All murder committed with ****** express malice is murder in the first degree, and all murder no,t of the first degree is murder of the second degree.

“Express malice is where one with a sedate, deliberate mind and formed design doth kill another, which formed design is evidenced by external circumstances discovering that inward intention, such as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him bodily harm, and the like.

“Implied malice is that malice which the law presumes to exist in him who commits any deliberate and cruel act, however sudden done or committed, without just cause or excuse, in such a manner as to indicate a wicked and depraved spirit, or a heart regardless of social duty and fatally bent on mischief.”

Whilst the charge thus far might have been fuller and more explicit perhaps, still we think, with the exception or omission to be hereafter noted, it substantially presents the general rules of law upon murder in the first and murder in the second degree. After applying the law of the first degree to the case, the application with regard to murder in the second degree is thus submitted, viz: “If the jury do not believe from the evidence, beyond a reasonable doubt, that the defendant, Albert Hey land, did, in Orange county and State of Texas, with a sedate and deliberate mind and formed design to take the life of Jasper Gibson, fire upon, shoot and kill Jasper Gibson, but do believe from the evidence, beyond a reasonable doubt, that the defendant, Albert Heyland, did, in Orange county and State of Texas, on or about the twenty-first day of May, A. D. 1882, while acting under the immediate influence of sudden passion, such as anger, rage or resentment, or while under the influence of some sudden emotion of the mind unexplained by the evidence, and unaccompanied by the facts and circumstances constituting express malice, fire upon and kill Jasper Gibson, with a pistol, in a deliberate and cruel manner, such as to indicate a wicked, depraved and reckless disposition, then, and in that case, you will find the defendant, Albert Heyland, guilty of murder in the second degree, and assess his punishment,” etc.

After a most careful and critical examination of all the authorities and definitions of the term “implied malice,” a correct rule was laid down by Judge Clark, supported, as he says, by the established doctrine with us from the foundation of our first court. That rule is that, “ where it is shown that a homicide was intentionally committed, and the facts show that it was done neither with express malice nor under circumstances excusing, justifying or mitigating the act, that the law in that event implies malice, and the offense is murder in the second degree.” (Douglass v. The State, 8 Texas Ct. App., 520; Harris v. The State, 8 Texas Ct. App., 90; Hubby v. The State, 8 Texas Ct. App., 598.)

If the charge, as quoted, is considered with reference to this definition of implied malice and murder in the second degree, it will be found substantially correct, except that it omits, in the definition of “implied malice,” circumstances “mitigating” the act. Circumstances may fail to excuse or justify the act, and yet they may mitigate it so as to bring it below murder in the second degree, in which event that degree should not be found. In connection with the definition of implied malice, if there be any facts proven tending to excuse or justify or mitigate the act, then it would be necessary, perhaps, for the court to further explain the law with reference to such facts; but if there are no such facts, then it is not necessary to do so.

The second proposition with regard to the charge is that manslaughter was part of the law applicable to the facts proven, and therefore should have been given. In one aspect of the case we aré of opinion this position is correct, and with respect to that phase of the case the court should have given it. It appears that many threats had been made by the deceased against the life of defendant, and that they had been communicated to him. Shortly after leaving the church and but a short time before the killing, some parties pass the deceased, his brother, and defendant. Deceased has his pistol out, and defendant is remonstrating with and trying to get him to put up the pistol. After he was shot, his pistol was found lying on the ground by him, showing that it must have dropped from his hand as he fell from his horse. How if, on account of these actions of deceased taken in connection with his previous threats, defendant was put in such a state of anger, rage, resentment or terror as in a person of ordinary temper was sufficient to render the mind incapable of cool reflection, then there was “adequate cause” for the killing, and it would be of no higher degree than manslaughter. (Penal Code, Art. 595.) Such facts might have been insufficient to satisfy the jury that defendant acted in self-defense, and yet amply sufficient to warrant them in finding manslaughter.

“If in a murder case there be evidence which, however inconclusively, tends to prove facts from which the jury may deduce a finding of manslaughter, it is incumbent on the trial court to give the law of manslaughter in charge to the jury; and it should be given affirmatively, directly, and pertinently to the theory of the case indicated by such evidence.” (McLaughlin v. The State, 10 Texas Ct. App., .340.)

We are of opinion that the court also erred, as shown by the second bill of exceptions, in refusing to permit the witness Theo. Wood to give in evidence the declarations of defendant as to the circumstances of the homicide made to the witness John Cole within a half minute after the killing. It was true Cole had testified as to these declarations, but this was no reason why defendant should be deprived of his right to have his own witness testify to the same facts. These declarations, in spontaneity and in point of time, came most clearly within the rule of res gestee (see Foster v. The State, 8 Texas Ct. App., 248, and authorities), and should not be treated as self-serving declarations.

Other errors are assigned, but they are riot considered well taken or likely to arise on another trial.

For the errors above discussed, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Opinion delivered March 3, 1883.