Lopez v. State

Conviction for murder; punishment, death.

The record shows that because of the disqualification of the regular judge of the district, an exchange of judges was agreed upon, and that the judge of the One Hundred and Third Judicial District of Texas presided upon the trial of this case. We see no irregularity or error in this procedure. In case of an exchange of benches by regular judges, no formal qualification upon exchange is necessary. The cases cited by appellant in his brief all have reference to special judges. The matter appears too plain to need further discussion. See article 553, C. C. P.; Hart v. State, 61 Tex.Crim. Rep., 134 S.W. 1178; Connellee v. Blanton (Texas Civ. App.), 163 S.W. 404. We find in the record no bills of exception or complaint of the charge of the court.

Appellant insists that the evidence is not sufficient to justify the verdict and punishment. We cannot agree to this. There is no question but that appellant struck deceased with the blade of an axe which was so embedded in the forehead of deceased by the blow as that it required the efforts of two men, after death, to remove the axe from the skull of deceased. One Garcia testified that he had a group of cotton pickers working for him, and that they lived in the same house. He said he saw deceased and appellant the afternoon before the night of the killing. The next morning he went to this house upon hearing of the trouble. Deceased lay with an axe sticking in his head, and all the men who stayed in the house were present save appellant. Sheriff Snow went to Garcia's farm on the morning following the homicide. He had gotten word about four A. M. that a man had been killed at said farm. When he got there he saw deceased with an axe still sticking in his head, but not yet quite dead. He with others followed the track of a man leaving the place, and went some four miles, after which they returned and found deceased dead. They with some difficulty removed the axe from his head. Mr. Snow said the blade of the axe was sunk in just above the eyebrows of deceased and was driven straight into the man's head up to the eye of the axe. There was no question but that the blow was the cause of death. Appellant made a full and detailed confession, admitting that he struck deceased with the axe while the latter was asleep. The only reason advanced in the confession for the killing was that some time prior deceased had urinated upon appellant. In the confession appellant stated that deceased urinated in his, appellant's, face. Testifying as a witness, appellant changed this statement in this regard and said he was mad at deceased because the latter had urinated upon his back. It is suggested in the brief that the court should have submitted the issue of murder without malice, and should have given in charge the substance of chapter 60, Acts 42nd Legislature, Regular Session (Vernon's Ann. P. C., art. 1257c), applicable to a homicide committed under the immediate influence of sudden passion. Appellant pleaded guilty. The court submitted murder both with and without malice. There was no exception to the court's charge for its failure to submit the provisions of said chapter 60. Such omission was not an error of fundamental character, if error at all. Certainly the provisions of said chapter are no more sacred than any other part of the law, and in the absence of an exception to the court's failure to give the same, it would not be reversible error. Scott v. State, 114 Tex.Crim. Rep.,26 S.W.2d 263; Arcos v. State, 120 Tex.Crim. Rep.,29 S.W.2d 395. See article 658 (as amended by Acts 42nd Legislature [1931], chap. 43, sec. 5, [Vernon's Ann. C. C. P., art. 658]), and articles 659-666, C. C. P.

No error appearing, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.