Charles Smith v. The State, 22 Tex. Ct. App. 316

Willson, Judge. I. There was no error in refusing to grant defendant’s application for a continuance. It was his second application, and it does not comply with the statute, in that it fails to state that the absent testimony could not be procured from any other source, and that defendant had reasonable expectation of procuring the same at the next term of the court. (Code Crim.

Proc., Art. 561.) It appears from the evidence adduced on the trial that the material facts which defendant expected to prove by the absent witness were proved on the trial by other witnesses, and there is no ground for supposing that he was probably injured in his rights because of the refusal of the court to continue the cause. Viewed in the light of the evidence adduced on the trial," the absent testimony was immaterial, and could not have benefited the defendant.

Besides, it was not made clearly to appear that’the testimony of this witness could not have been obtained by deposition, before she became paralyzed, and yet at a time when defendant knew that by reason of her age and infirmity she might not be able personally to attend and testify on the trial. II. There is in the record a general exception to the charge of the court,—to the entire charge,—not pointing out any particular error complained of; not calling the attention of the court definitely to anything.

Bills of exception, when too indefinite to point out distinctly the matter complained of as error, will not bring such matter properly before this court for review. (Walker v. The State, 19 Texas Ct. App., 176; Phillips v. The State, Id., 158; Davis v. The State, 14 Texas Ct. App., 645.) The primary purpose of a bill of exception to a charge of the court is to direct the attention of the trial judge to the particular error or errors complained of, thus affording him an opportunity to correct the error or errors in time to prevent prejudice to the defendant’s rights.

This purpose is not accomplished by a general exception to the whole charge. A secondary purpose of such bill is to enable this court, on appeal, to readily preceive the error or errors complained of, without having to examine other portions of the record. A general exception to an entire charge affords this court no aid or information whatever in determining the correctness of the charge.

Such being the character of the bill of exception in this case, we are not called upon to consider any errors in the charge which are not fundamental, or which were not in our judgment calculated to injure the rights of the defendant. (Mace v. The State, 9 Texas Ct. App., 110; Smith v. The State, 15 Texas Ct. App., 139; Gilly v. The State, Id., 287; Lewis v. The State, 18 Texas Ct. App., 401; Phillips v. The State, 19 Texas Ct. App., 158.) III. After a careful scrutiny of the charge, we find. no.fundamental error in it. The court unnecessarily and improperly defined murder in the first degree, and express malice.

This was no part of the law of the case, the defendant on a former trial having been acquitted of murder in the first degree. The charge should have been limited to murder in the second degree. (West v. The State, 7 Texas Ct. App., 150; Baker v. The State, 4 Texas Ct. App., 223.) We can not imagine, however, how this error in the charge could prejudice the defendant, as the jury were clearly and positively instructed that the defendant could not be convicted of murder in the first degree.

Even if the evidence showed him to be guilty of murder in the first degree, he is not entitled to have the conviction set aside if the evidence and the law warranted a conviction of murder in the second degree. (Baker v. The State, 4 Texas Ct. App., 223.) IV. Another error is found in the definition of implied malice, as given in the charge. The word “excusing” is omitted from said definition, and this defect in the charge was one of the grounds upon which a former judgment of conviction in this cause was reversed. (Smith v. The State, 19 Texas Ct.

App., 95.) In the former opinion in this case a proper definition of implied malice was given, which definition the trial judge followed in his charge on the second trial, except that he omitted, inadvertently, we suppose, the word “excusing.” This omission in the charge, on the former appeal, was held to be material error, because it was not supplied in any other portion of the charge, because the j ury were no where informed by said charge that homicide committed by an insane person is excusable.

In the charge now before us, the defect in the definition of implied malice is fully supplied by other portions of the charge, so that the jury could not have failed to understand that, if the defendant was insane at the time of committing the homicide, such homicide was excusable, and they must find him not guilty. Considering the whole charge, the error in the definition of implied malice is immaterial, and was without prejudice to the defendant. Opinion delivered November 17, 1886. V.

There was no evidence fairly raising the issue of self defense, and therefore it was not error to refuse to give the special instructions upon this subject requested by defendant. VI. Upon the defense of insanity, the charge of the court is sufficient. It is a copy of a charge approved by this court in Clark v. The State, 8 Texas Court of Appeals, 350. VII.

It was not error to refuse the special charge requested by defendant,- to the effect that when insanity has been proved to have existed prior to the homicide, the law presumes that it continued to exist, and unless this presumption be rebutted, the jury must find that defendant was insane at the time of the homicide. This same question arose in Leache’s case, decided by this court át its present term, and was there thoroughly examined and discussed. We refer to the opinion in that case for our views and reasons in full, and the authorities in support thereof.

In accordance with our decision in that case, we hold that the court properly refused to give the special charge above mentioned. (See ante, 297.) VIII. That the evidence sustains the conviction, we have no doubt. While there is evidence in support of defendant’s plea of insanity, it by no means clearly establishes such plea. On the contrary, we think the evidence establishes that, at the time of the homicide, he possessed that degree of. sanity which rendered him legally responsible for the homicide.

As to the character of insanity which will excuse crime, we refer again to Leache’s case, supra, where the subject is exhaustively treated. Finding no error in the conviction for which it should be disturbed, the judgment is affirmed. Affirmed.