Burnham v. State

Citations

• 43 Tex. 322

Syllabus

<p>1. Murder of the first degree.—Two men, utter strangers to each other, on their first meeting engaged in a rencounter, in which one was killed. The difficulty began by an effort on the part of deceased to stop the way of the survivor as he was passing, followed by the drawing of a pistol by deceased, over which a struggle occurred for its possession. During the struggle the pistol fired and deceased fell, whereupon the survivor, after stepping from the body four or five steps, instantly returned and fired the pistol at the head of his late adversary, inflicting a mortal wound. Not more than twenty seconds elapsed from their first meeting to the consummation of the homicide: Held, that the circumstances attending the homicide did not afford evidence of that express malice necessary to constitute murder of the first degree.</p> <p>2. See opinion for a full statement of facts held not sufficient to support a conviction for murder of the first degree.</p>