Harris v. State

Appellant's counsel, on motion for rehearing, has raised the question, that in Texas the punishment of death is no longer fixed as punishment for crime — that such laws were repealed by the indeterminate sentence law passed at the First Called Session of the Thirty-third Legislature. This is the first time such question has been raised, but, of course, if our laws no longer authorize the infliction of death as a punishment for crime, the question can be raised at any time, for no punishment not authorized by law can be inflicted. But does the indeterminate sentence law repeal those statutes authorizing the death penalty to be assessed for certain offenses? If so, it is by implication only, for that Act contains no clause expressly repealing laws assessing the death penalty, and repeals by implication are not favored, and it is only when there is an unavoidable inconsistency in the two Acts that the later law will be held to repeal the earlier statutory provision. (Sutherland on Stat. Con., sec. 247.) It is contended by appellant that the first indeterminate sentence passed at the Regular Session of the Thirty-third Legislature exempted from its provisions by specific words those cases in which the death penalty may be assessed, and the later Act does not do so; that it was the intention of the Legislature to repeal those provisions of the Code assessing the death penalty for certain crimes. We do not think so. By referring to the first indeterminate sentence law (Chap. 132, Acts 33rd Leg.) it will be seen that by its terms and provisions it took away from the jury the right to assess the punishment in all felonies, except in cases where the jury desired to inflict the death penalty, and required the court to assess the punishment at a fixed maximum and minimum Act (Chap. 5, Acts of the First Called Session of the Thirty-third Leg.) it restored to the jury the right and made it their duty to asses the punishment in all felonies, necessarily including those cases in which the death penalty might be assessed, and then provided that period of time of imprisonment in the penitentiary. By the amendatory if the punishment was assessed at a term of years in the penitentiary, that the judge in passing sentence should pronounce an indeterminate sentence, assessing the maximum punishment at the term fixed by the jury, and a minimum term of the least punishment fixed by law for such an offense. In this latter law there is nothing repugnant or inconsistent with those laws affixing the death penalty for certain crimes, but it is clearly manifest that the only purpose the Legislature had in view was to restore to the defendant the right to have the jury assess the punishment in all cases, that they might give consideration to any mitigating circumstances which the evidence might disclose, and then require the court to assess an indeterminate sentence, using the term of imprisonment as fixed by the jury as the maximum term, that a person convicted of crime might be given the benefit of good conduct while confined in the penitentiary. The law neither expressly nor by implication repeals those provisions of the Code which authorize the jury to assess the death penalty for certain crimes when they in their judgment think that this punishment should be assessed. No court would be authorized to hold that those parts of the Code authorizing the infliction of the death penalty had been repealed, unless the Legislature by express statute had so declared, or the language used in a later Act was so repugnant to the earlier provisions of the Code, that one was necessarily driven to the conclusion from the language used that this was the intent and purpose of the Legislature.

All the other questions discussed were passed on in the original opinion, and counsel's only other contention made in his able oral argument in this court is that the evidence does not disclose such a state of facts that the death penalty should have been assessed. He does not contend that the evidence does not show an unlawful killing, but that the record raises the issue that appellant was temporarily insane from the recent use of intoxicating liquors. This issue was submitted to the jury fairly by the trial court and they find against his contention. Appellant, it is true, testifies he was so drunk he had no recollection of the homicide. He says he took one drink of whisky early in the morning, and then later drank two glasses of egg-nog and remembers nothing more that took place that day. There is evidence that he may have drunk a quantity of wine also, but no positive proof of that fact. There is only one eyewitness to the killing, Alfred Barnes. He testifies that as he looked down the street he saw a negro and white man fighting; they went to the ground; he did not know which one was on top; that the white man shortly got up and broke and run, when the negro took after him with an axe, and when he overtook the white man, knocked him to the ground. Barnes says he at once went to them and recognized appellant as the negro and deceased as the white man. That deceased was on the ground, his head being bloody, and he then separated them, and carried the man in a house to wash the blood from off of him. While doing so appellant came to the door and made threatening remarks. Barnes ordered him away and then undertook to carry the white man home. Appellant again approached and without a word struck the white man with the axe, knocking him down, and took after Barnes with the axe. Barnes fled, when appellant returned to where the white man lay on the ground, and again struck him with the axe, saying, "You G___d d___n s___n of a b___h, I will kill you," and did so.

Appellant did not have a mark or scratch of any kind on him — only some blood on his clothes that apparently came from deceased. This evidence certainly authorized the assessing of the death penalty under the law, for it shows a fixed purpose to kill, unless appellant was temporarily insane from the recent use of intoxicating liquors. There is evidence pro and con on this issue, and we would not feel authorized to disturb the finding of the jury on that issue.

The motion for rehearing is overruled.

Overruled.