Escareno v. State

Citations

• 16 Tex. Ct. App. 85
• 1884 Tex. Crim. App. LEXIS 74

Syllabus

<p>1. Practice—Manslaughter—Charge oe the Court.—Objection that the court erred in omitting to charge the law of manslaughter was first made in the motion for new trial. The rule under such circumstances is, that this court will not interfere unless such omission appears calculated to result to the prejudice of the defendant.</p> <p>2. Same—Evidence.—The Mexican term “cabrón,” meaning that the person to whom it is applied consents to the prostitution of his wife, was claimed by the defendant to have been applied to him by the deceased, and upon that ground it is urged that, being an insult to his wife, the ' homicide could not be murder, but manslaughter, and that the omission of the court to so charge the jury was error. It was proved that some one of several parties present used the word “cabrón,” but it was not proved that it was the deceased who used it. Held, that this evidence was insufficient to disclose prejudice to the defendant in the omission to charge the law of manslaughter. ¡Note, also, that the motion for new trial sets up evidence which clearly discloses that the insulting word was not the moving cause of the homicide.</p> <p>3. Same—Verdict—Presumption oe Law.—The validity of the conviction is assailed upon the ground that the verdict was not translated into the language of the defendant, who is a Mexican. In the absence of a bill of exceptions presenting such fact, this court cannot proceed upon the assumption that everything stated in the motion for new trial is true, when the record is silent on the subject.</p> <p>4. Same.—Primarily the presumption of law is in favor of the regularity of all the'proceedings in the case. The record fails to show affirmatively whether the defendant was or was not present when his motion for new trial was acted upon. Held, that under such circumstances, his presence at the time is presumed on appeal.</p> <p>5. Same—Waiver.—In the assignment of errors it was shown that the defendant’s right to be present when his mo