Rather v. State

White, Presiding Judge.

This appeal is from a conviction for murder of the first degree, with the penalty assessed at death. The murdered victim was appellant’s own wife.

A motion in arrest of judgment was made by defendant’s counsel, and was based upon three grounds in substance, as follows: 1. Because the fact of the finding and return of the indictment by the grand jury into open court was not entered upon the minutes of the court. 2. Because the indictment does not warrant a conviction for a higher grade of crime than murder of the second degree. 3. It does not appear from the minutes of the court that a special venire was ever ordered and drawn to try this defendant in this case.

Opinion delivered June 13, 1888.

None of these grounds are sustained when the record as it is-here presented is consulted. But even if the record failed to contradict (as it does affirmatively), the first ground of the motion, such objection could not be availed of on a motion in arrest, but, if available, must be made so by exception taken in limine to the indictment. (Rowlett v. The State, 23 Texas Ct. App., 131, and authorities cited.)

As to the second ground, the indictment is a good and sufficient one for murder of the first degree. (Willson’s Crim. Forms, No. 388, p. 173; Bean v. The State, 17 Texas Ct. App., 60; Sharpe v. The State, Id., 486; Lucas v. The State, 17 Texas Ct. App., 79; Walker v. The State, Id., 176; Penland v. The State, Id., 365.)

The third ground of the motion is one which, if sustained by the record, could not be taken advantage of by a motion in arrest of judgment after a trial.

We have carefully examined the charge of the court in connection with the objections to it as shown in the record and so-forcibly presented in the able oral argument and brief of counsel for appellant, and we are constrained to say that we have-found no tenable objection to it. It is, in our opinion, a most clear, fair and able exposition of the law applicable to the case-as made by the evidence, and in that portion of it relative to-temporary insanity produced by the use of alcoholic stimulants, it was in strict harmony with our statute and rules of decision upon the subject. (Acts of 1881, p. 9; Ward v. The State, 19 Texas Ct. App., 664; Leache v. The State, 22 Texas Ct. App., 279.)

With regard to the evidence, suffice it to say that in our opinion, it amply supports the verdict and judgment. A more unprovoked, cruel, heartless and brutal murder can scarcely be conceived than that disclosed by the record here presented. There is not one single palliating circumstance to relieve its enormity.

We are of opinion appellant has had a fair and impartial trial, and one free from reversible error. We are also of opinion that the punishment is one he .has merited by the crime he is proven* to have committed.

The judgment is affirmed.

Affirmed.