Davis v. State

Willson, Judge.

1. Defendant’s several bills of exception, taken to the rulings of the court in admitting evidence introduced by the State, do not set forth the objections, if any, that were made to the admissibility of the evidence in the court below. We are not, therefore, called upon or authorized to consider and revise these rulings in the trial court. In Summers v. The State, 5 Texas Court of Appeals, 365, this court said: “Exceptions to the admission of evidence on the trial, where no reason is assigned for objecting to it, will not be sustained when the evidence is obviously competent as tending to prove any of the facts put in issue by the pleadings.” And again, in Mayo v. The State, 7 Texas Court of Appeals, 342, it is said: “Inasmuch as the judge cannot discuss or comment upon the proposed evidence, but must simply decide upon the objections made to it, it seems fair to infer that all objections intended to be relied on must be clearly stated, so that he may act in reference to all, and that a failure to assert any objection would be tantamount to a waiver of all objections not affirmatively presented.” (See, also, King v. The State, 13 Texas Ct. App., 277.) Without intimating any opinion as to the admissibility of this evidence, we have only to say that the matter is not presented to us in such manner as to authorize us to determine it.

3. Defendant’s bill of exception to the exclusion of the testimony of the witness Davis fails to disclose-such facts as exhibit the relevancy and materiality of the proposed evidence. In Walker v. The State, 9 Texas Court of Appeals, 200, this court said: “ Inferences cannot and will not be indulged to supply omissions in bills of exception. It is the duty of those seeking to avail themselves of the supposed errors reserved to make the bill so full and certain in its statements that, in and of itself, it will disclose all that is necessary to manifest the supposed error.” We fail to perceive from this bill of exception the relevancy and materiality of the rejected evidence, and therefore cannot hold that the court erred in refusing to admit it.

3. It is objected by defendant, to the charge of the court, that it did not define murder in the second degree, but instructed the jury as to the punishment for that offense. There is nothing in the evidence presented to us which called for, or which would have warranted a charge upon murder in the second degree. If the homicide was committed by the defendant, then there can be no doubt, from the evidence, as to its degree. It was murder in the first degree, and could have been nothing less. There being no facts in the case which would warrant a charge upon murder in the second degree, it would have been error in the court to have given such a charge. It was error to charge the punishment of murder in the second degree, but this error was not excepted to by the defendant at the time, but is presented for the first time in a motion for a new trial. This being the case, the inquiry with us is, was it calculated to injure the rights of the defendant? If it was, it would be error for which the conviction would be set aside; but if it be apparent that the defendant has not been prejudiced thereby, the judgment will not be disturbed because of it. (Code Crim. Proc., Art. 685; Clark’s Crim. Law, p. 522, note 208.) It is clear to our minds that the error complained of was favorable to the defendant. It gave the jury the option of punishing him for murder in the second degree only, when, if guilty at all, he was guilty of murder in the first degree. It was not calculated in any way, or to any extent, to injure his rights, and is obviously not such an error as should cause us to set aside the conviction.

4. Another objection made to the charge is that it fails to instruct the jury as to the rules of law applicable to the defense of alibi. We are not aware of any statute or decision which requires the trial judge to instruct the jury specially upon this defense, when not requested to do so. It is sufficiently embraced, we think, in the general charge that the defendant is presumed by the law to be innocent until his guilt is established by competent evidence, beyond a reasonable doubt. This general charge was given by the court, and the charge was in all other essential respects full, clear and applicable to the facts of the case. If the defendant desired a special charge in relation to his defense of alibi, he should have requested the court to give such a charg-e; which he did not do, nor did he except at the time to the omission of the court to charge upon that subject. (Deggs v. The State, 7 Texas Ct. App., 359; McGrew v. The State, 10 Texas Ct. App., 539.)

5. It only remains for us to pass upon the sufficiency of the evidence to sustain the verdict of the jury. While the evidence is all circumstantial, we must say that to our minds it is irresistibly convincing of the guilt of the defendant. It is not necessary that we should recite or discuss the facts. They consist of a most extraordinary chain of circumstances connecting the defendant with the act of assassination, and fastening the crime upon him beyond all reasonable doubt. We think the verdict is amply sustained by the evidence.

There is no error in the judgment, and it is affirmed.

Affirmed.

Opinion delivered October 24, 1883.