Charles Darnell v. The State, 15 Tex. Ct. App. 70

. Hurt, Judge. Charles Darnell, the appellant, stands convicted of the murder of William Gilbraith, the jury assessing the death penalty. From this conviction he appeals to this court. The record contains no bill of exceptions, assignment of -error, or notice of appeal; nor was the statement of facts filed in the court below in time. However, the Assistant Attorney General, upon proper information, agrees that the notice was given, and that the statement of facts was properly filed, and that the record below will show these facts.

When the cause was regularly reached and called for trial, defendant filed a motion for a continuance, for the want of the testimony of Susan Murray. Upon the trial Susan Murray was introduced and testified for the defendant. The following were the grounds relied upon for new trial: 111. The verdict of the jury is not supported by the evidence. 2. The verdict of the jury is contrary to law. 3. The verdict of the jury is contrary to the law and evidence. 4.

The charge of the court is erroneous.” There was no charge requested by defendant, nor was there objection made to any charge, or portion of the charge given to the jury by the learned judge below. Simply to say, in the motion for new trial, “that the charge is erroneous,” furnishes the trial judge no information as to the particular defect complained of, so that relief, if any error was made, could have been granted below. It is urged by counsel for defendant, in the argument, that the trial judge erred in not submitting to the jury the law applicable to murder of the second degree.

This depends upon the facts of the case. If there was evidence tending to present this degree of homicide, evidently the trial judge should have instructed the jury thereon. Nor would the want of cogency of such evidence relieve the court of this duty. The question, therefore, is, was there such evidence? The record in this case shows, beyond any shadow of doubt, that he who killed William Gilbraith committed murder of the highest and most culpable degree; for this homicide was a most dastardly and cowardly assassination.

There is not a fact in the whole record of facts tending in the slightest degree to present an issue upon murder in the second degree; and the trial judge, in this case, would have erred against the interest of society if he had lowered the standard of justice by submitting to the jury a charge upon this degree of homicide.. For, as before stated, this was murder of the first degree, and the learned judge did his duty in firmly holding the jury to the only issue presented by the evidence. Does the evidence sustain the verdict of the jury, finding that defendant Darnell was guilty of this most heinous crime?

If it be possible to prove guilt by circumstances, Darnell killed William Gilbraith. The case is not one of circumstances alone, but was witnessed by T. J. Moore, who gave a clear and consistent account of the homicide. But it may be urged that Moore was an accomplice, and that he told different and conflicting tales about the killing. Concede this, nevertheless his evidence was in perfect accord with the physical facts at the locus in quo. But, eliminate Moore’s evidence from the case, by the facts and circumstances, Darnell’s guilt is almost as clear and patent as demonstration itself.

We are, therefore, of the opinion, first, that the evidence proves a homicide upon express malice; and, second, that Darnell was guilty of this terrible tragedy. We have given the charge of the court a very careful examination, and have failed to find such error as will require a reversal of the judgment. There are some things therein which should have been omitted, but no injustice to defendant appears in the record by reason thereof.

Where the record before us shows that the defendant has been awarded a fair and impartial trial, and the evidence develops his guilt, our duty impels us to affirm the judgment, be the penalty what it may. In the case at bar, the verdict of the jury, that defendant shall die, is, we think, a righteous and just verdict, brought upon defendant by his own calm, deliberate and malicious act; and the judgment entered therein is hereby affirmed. Opinion delivered November 14, 1883. Affirmed.