Gaitan v. State

Citations

• 11 Tex. Ct. App. 544

Syllabus

<p>1. Practice in this Court — Evidence.— The admission of evidence by the trial court will not be revised on appeal unless it was objected ' to at the trial, either when it was offered or subsequently by motion to exclude it from the jury, nor unless the objections themselves are disclosed and verified by the record.</p> <p>3. Murder op the First Degree—Proop op Express Malice.—To warrant a conviction for murder of the first degree, it is incumbent on the State to prove that the killing was done on express malice, and with a sedate, deliberate mind and formed design; but nevertheless a homicide may be murder of the first degree although the result of the sudden execution of an immediate resolve to kill or to . inflict serious bodily injury which may result in death, and in such cases the indicia of express malice may be evidenced by the cool, calm and circumspect deportment of the slayer at the time of the fatal act, and immediately anterior and subsequent thereto,— by the absence of a provocation or exciting cause,— by the nature of the fatal act itself, and the character of instrument used, as well as the manner of its use,— by declarations indicative of the state of mind or the motives of the slayer,— or by other evidential circumstances pertinent to the issue.</p> <p>3. Same.—It is not necessary that the evidence of express malice shah demonstrate it to mathematical certainty. The requisite degree of certainty is such as is reasonably sufficient to satisfy and convince the jury.</p> <p>4. Drunkenness.— In a trial for murder the .defense, with reference to the question of manslaughter, asked the following instruction to the jury: “You may take into consideration the fact that the defendant was intoxicated at the time of the commission of the crime, in deciding the adequacy of the cause of the passion under which he acted, or if the cause of his passion was adequate in law to reduce the crime from murder in the second degree to manslaughter.” Held, properly refus