DocketNumber: No. 3011
Citation Numbers: 26 Tex. Ct. App. 445
Judges: Willson
Filed Date: 11/21/1888
Status: Precedential
Modified Date: 9/3/2021
On the evening of July 26, 1888, about good dark, at the house of Caleb Cooper, in Smith county, Isham Amos was shot and killed by some person. At the time deceased was shot he was sitting on the gallery of the house in company with one Willis King. He was shot with buck shot and lived but a few moments after being shot. It is very clear from the evidence that whoever did the shooting lay in wait for that purpose, and perpetrated the deed with a cool, sedate
If Isham Amos was killed through mistake, the slayer believing him to be Willis King, whom he intended to kill, the homicide is of no higher grade than murder in the second degree, and if the killing of King, had he been killed, would have been manslaughter only, then the killing of Amos, believing him to be King, would be manslaughter only. But, if King had been killed instead of Amos, and killed by the defendant, shortly after the defendant had been informed and convinced that said King had had carnal intercourse with his, the defendant’s, wife, such killing, uuder the facts of this case, would have been murder in the first degree. It could not have been manslaughter, because the evidence shows that in committing the homicide his mind was cool, sedate, and deliberate. He prepared himself with a weapon, traveled a half mile or more, secreted himself in a convenient place, and waylaid his intended victim. He was not acting under the influence of sudden passion. We are of the opinion, therefore, that the facts of the case did not demand or warrant a charge upon the law ■of manslaughter.
It is insisted by counsel for appellant that the evidence is insufficient to support the conviction. We think otherwise. Hot-withstanding the evidence is circumstantial, it is, to our minds, quite conclusive of the defendant’s guilt, and fills the requirements of the law.
It is objected by appellant’s counsel that the best evidence of the defendant’s guilt was not produced nor its absence accounted for by the State—that is, the testimony of Willis King .and of Frances Graybill. This objection is not maintainable. It does not appear that Willis King’s testimony would have shed any light upon the transaction. It is not probable that he saw or knew who did the shooting, or that he knew any fact which would have aided the jury in arriving at the truth. With respect to Frances Graybill, the wife of Mansur Graybill,
We perceive no error in the conviction, and the judgment is affirmed.
Affirmed.