Fred. E. Waite v. The State, 13 Tex. Ct. App. 169

White, P. J. Appellant Waite and two other parties, Wyatt Banks and Daniel Compton, were charged by indictment with the murder of one Ad Wyser, by striking him with a piece of iron piping, on the twenty-eighth of May, 1883. Defendants prayed a severance, and, the same being granted, appellant Waite was put upon his trial. It resulted in a conviction of murder in the first degree with the death penalty; and from that judgment this appeal is taken.

A piece of iron piping, described by the witnesses as being about two or two and a half feet long and three-quarters of an inch in diameter, was the instrument with which it was proven the blows were inflicted that caused the death.

The medical experts, Doctors Carrington and Patterson, who had been called to see the wounded .man, and who had examined his wounds before and after death, after having testified to the nature and character of the wounds, were shown the piece of iron piping, which was in court and which had been identified by another witness as the instrument used in the killing, and were asked by the prosecution the question, “Would such an instrument in the hands of a man of ordinary strength, used as a bludgeon, produce the wounds you have described and be likely to cause death?” which question the court permitted the witnesses to answer, over the objection urged by defendant “that the witness could not give his opinion as an expert upon the point to which the question was directed.” This supposed error is made the first ground in motion for a new trial.

The witnesses were introduced as experts, and the question was proper and their answers admissible. “The opinions of medical men who are shown to be experts as to the instruments producing, and the nature and consequences of wounds, or the causes of diseases, are competent evidence in a prosecution for homicide.” (State v. Murphy, 33 Iowa, 270; State v. Porter, 34 Iowa, 131; 1 Green’s Crim. Law Rep., 241; Page v. The State, 61 Ala., 16; Rash v. The State, 61 Ala., 90.) Mr.

Wharton, in his work on criminal evidence, cites numerous authorities in support of the doctrine that “a surgeon is admissible to prove the nature of a wound and its probable cause and effect.” (Whart. Crim. Evid., sec. 412. See also Ebos v. The State, 34 Ark., 520; and Shelton v. The State, 34 Texas, 662.) It was also objected that the court erred in admitting the testimony of the witnesses Wilder and Cox as to the circumstances connected with the flight and the recapture of defendant after his escape from jail. In this the court did not err.

Flight and the attendant circumstances are legitimate matters to be considered in connection with other evidences of guilt. (Clark’s Crim. Law of Texas, p. 544.) After his rearrest and confinement in jail defendant wrote out a voluntary statement of the facts concerning the killing, after he had been duly warned that it would be used against him on his trial. This statement was produced in court, identified, and read in evidence without objection from defendant. Had the evidence been illegal, defendant could not be heard to complain of its introduction, if he interposed no objection at the time.

On the other hand, the statement was not only a voluntary confession, freely made, without compulsion or persuasion, but it was written out, signed, and delivered by defendant to the witness after he had been previously warned and fully apprised of the fact that it would be used as evidence against him. Such being the case it was admissible, and should have been admitted, even though objection had been made at the time it was offered in evidence. (Code Crim. Proc., Art. 750.) Nor was any issue raised at the trial with regard to the consequences and effect of this confession.

The facts stated, independent of the confession, were fully established by other testimony. No special instruction was requested with regard to its consideration by the jury, and no exception was saved to the charge as given, because of omission to announce the law applicable to it. As given, we see no objection to the charge, and if a more explicit or special enunciation of the law with regard to this particular subject was desired, defendant should have requested it by special instruction, and then its necessity would be inquired into by us.

We find the charge a full and clear declaration of the principles of the law upon all the issuable facts in the case, and we do not think the court erred in declining or omitting to charge upon it. It only remains for us to pass upon the facts. As to their sufficiency, there is and can be no question of defendant’s guilt. He has voluntarily confessed it to the fullest extent. Had he not done so, the other testimony fully establishes, beyond reasonable doubt, that he willfully, deliberately and with express malice took the life of.Wyser, and also robbed him of pistol and watch.

The fact that he was a prisoner and committed the deed to effect his escape from custody affords no excuse, justification, or even extenuation of his crime. We see no error in the judgment and it is in all things affirmed. Affirmed. Opinion delivered November 11, 1882.