Schwartz v. State

BROOKS, Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

The first and second grounds of the motion for new trial complain of the admission of the testimony of Julia Stevens, and the exhibition of a pair of boots in evidence, and while one of the jurors, Ed Zengerle, was looking at one of the boots with a magnifying glass, trying to find some traces of cinders on the bottoms of said boots, counsel assisting the State in the prosecution, left his seat at the bar and walked in the direction of said juror who had said boot and magnifying glass, and began to converse with said juror relative to the cinders on said boots, etc. Neither of these grounds of the motion are verified by any character of bill of exceptions; hence they cannot be reviewed.

The third ground insists that the court erred in admitting the language of defendant’s father to his son on June 7th, in the presence of .the officer, when defendant was under arrest by the officers and had not been legally warned by said officers. This complaint is not verified by bill of exceptions.

The last ground of the motion complains of the eleventh paragraph of the court’s charge, and as the words “per se” used in said charge were calculated to mislead and confuse the jury, as the law requires the charge of the court as well as the indictment to be in the English language and to be in plain and intelligible words. The paragraph complained of reads as follows: “If any person in the perpetration or in the attempt to perpetrate a robbery upon another, shall take the life of such other, he shall be deemed guilty of murder, and murder committed in the perpetration of robbery or in the attempt to perpetrate robbery is per se murder of the first degree.” It is true, as appellant insists, the words “per se” are Latin, but they are of universal use in the English language, and are properly considered as a part of our language, though derived from the Latin; and no juror of ordinary intelligence could be misled by these terms. Furthermore, the words can be discarded in the charge and leave the sentence altogether intelligible and a proper charge, since all murder committed in the endeavor to perpetrate robbery is murder in the first degree—made so by statute. And if there was any juror who did not understand the words, “per se,” as insisted by the appellant, the connection in which the words are' used clearly and intelligently inform the jurors of the law, regardless of whether he understood the import of the words. While the writer believes that Latin is often the expedient of the pedant and refuge of mediocrity, yet in the use of the words here, there is no manifestation on the part of the trial judge to display his learning or to conceal his meaning, but it is readily apparent what he intended to say. We do not think that the charge was in the least degree calculated to mislead the jury.

The evidence, while circumstantial, is well connected, and excludes every reasonable hypothesis save and except the guilt of appellant. It shows, in substance, that appellant went to the station house for the purpose of murdering the agent in "order to secure what money the agent might have in his possession. Money was found in appellant’s possession and reasonably well identified. The presence of defendant at the scene of the assassination, his tracks leading therefrom, the tracks of his horse, and various other circumstances not necessary to here detail, show with the utmost accuracy that appellant and no one else committed this dastardly crime. So believing, the judgment should and must be affirmed.

Affirmed.

Davidson, Presiding Judge, absent.