Aiken v. State

Citations

• 10 Tex. Ct. App. 610

Syllabus

<p>1. Continuance.—-Even a first application for a continuance, though conforming to the requirements of the statute, is now no longer a matter of right, but its truth and merits are addressed to the sound discretion of the trial court, and if overruled will be again considered by that court on the motion for new trial, in connection with the other evidence in the case.</p> <p>2. Same — Practice in this Court.— In passing upon the refusal of a continuance asked on account of the absence of a witness, the evidence adduced on the trial is likewise considered by this court for the purpose of determining whether the desired testimony was probably true, as well as whether it was material if true.</p> <p>3. Same — Evidence.— The statement of a witness that a third party had admitted to him the commission of the offense for which the accused was on trial is inadmissible because hearsay, and hence a continuance should not be granted for its production.</p> <p>4. Evidence—Flight.— Evidence that the accused fled after the commission of the offense, together with the circumstances attending his flight, is legitimate proof for the consideration of the jury, in connection with the other inculpatory evidence.</p> <p>5. Negligent Homicide is a killing which can only be predicated upon facts showing “ no apparent intention to kill,”</p> <p>6. Malice.—Though malice is the essential ingredient of murder, the principle is elementary that this specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind; as when a man resolves to kill the next man he meets and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. See the opinion for discussion of the principle.</p> <p>7. Same—Intent.— It is expressly provided by the statutes of this State, that “the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of t