Briscoe v. State

DAVIDSON, Judge.

Appellant was convicted of murder in the second degree, and allotted a term of twenty-five years in the penitentiary, and appeals. The indictment was against Mack Jones, Abe Briscoe, and Martha De Costa. Appellant was placed upon trial, and the prosecution dismissed as to the other two defendants, and they were used as witnesses on the trial of the case. Appellant reserved a bill of exceptions to the action of the court in permitting a written statement, made and sworn to by the defendant, to be read in evidence before the jury. Said statement was taken by J. T. Mahoney, justice of the peace. The objection urged, as stated in the bill of exceptions, was “that said statement was made by the defendant while he was under arrest and in jail, and after several parties, the said Mahoney being one, had talked to, requested, and urged the defendant to make such statement, and that the language used in said statement was not the language of the defendant, but the language of said Mahoney.” The court qualified said bill in the following language, to-wit: “The approval of this bill is not to be taken as certifying that the reasons why the defendant objected to the admission in evidence of said written statement referred to in this bill are true, or for any foundation in evidence; but, on the contrary, in my judgment said reasons were wholly unsupported by the evidence, and directly contradicted thereby, as will fully appear from the statement of facts herein, and the approval of this bill shall only be taken to certify that the reasons stated therein were the reasons stated by the defendant’s attorney when he objected to the introduction of this evidence.” The bill of exceptions, as qualified by the judge, and viewed from the statement of facts, to which the court referred, shows that the appellant desired to make a statement, and that he was warned, as shown by the written statement, introduced on the trial and certified by the justice of the peace who reduced the same to writing. He was therefore not only warned, but desired of his own motion to make said statement. The bill of exceptions as prepared by counsel was rather too indefinite to authorize its consideration, but as qualified by the judge it is sufficient for that purpose. Where a bill of exceptions is qualified by the trial judge, and that qualification is antagonistic to the statements in the bill prepared by counsel, and the bill as thus qualified is accepted by the party presenting it, the judge’s statement of the matters will control. If counsel are not satisfied with the bill as qualified by the court, it becomes their duty to prepare a bill under the terms of the statute in such state of case. We note with approbation the action of the trial court while qualifying this bill, stating that he did not certify to the truthfulness or correctness of the grounds of exception. Frequently grounds of exception reserved in bills are based upon matters of fact, and the facts themselves are not stated in said bill, except as grounds of exception. In all such cases, if such statements correctly represent the proceedings, the bill of exceptions should state them as matters of fact, and not as grounds of exception. The court very properly here states that he does not certify that the de fendant was not warned when the statement was made by him, as testified by Mahoney, but that he only verifies the bill to the extent that such an exception was urged. There is no error manifested by this bill of exceptions. It is urged that the court erred in charging the law applicable to a case of murder in the second degree, upon the ground that the facts showed murder in the first degree, if appellant was one of the guilty participants in the homicide. We do not so understand the law. While the testimony may have shown a cold-blooded and unprovoked killing, still the defendant cannot complain that the court gave him the benefit of a possible doubt as to the origin, cause, and attendant circumstances of the homicide, and submitted the issue of murder in the second degree. It is contended that the evidence in the case is insufficient to support the conviction. The testimony of the two accomplices, DeCosta and Jones, shows, beyond any question, that the defendant is guilty. DeCosta was an eyewitness to the homicide, and by her testimony Jones was a participant. The witness, Lasker, testified to facts corroborrating her testimony, tending to connect Briscoe and Jones with the homicide. There are some circumstances in the case, though slight, tending to show that he .may have been an accomplice. If he was not, then we think the corroboration sufficient from this source. The relation of these witnesses to the crime was properly submitted by the court in his charge to the jury. Independent of Lasker’s testimony, there are some circumstances, of more or less cogency, which tend to-connect both Jones and Briscoe with the homicide, and, we think, sufficient under the law to support this conviction. There is quite a mass of testimony along this line, and we do not propose to sum up or discuss the same. We think the testimony, however, is sufficient to support-the verdict of the jury, and the judgment is affirmed.

Affirmed-