Hamby v. State

Citations

• 36 Tex. 523

Syllabus

<p>1. Indictment for murder charged the defendant with having shot the deceased in the head, breast, and side, giving to him one mortal wound, of which mortal wound he then and there instantly died. Held, that if either of the wounds described proved mortal, the indictment would thereby be sustained; and therefore it was not bad on exception for insufficient description of the wounds.</p> <p>2. Evidence was admitted identifying the dead body as that of a person who was seen the evening before, and who then stated that a horse of a certain description had escaped from him, and who, on being told that the defendant was in possession of a horse answering to that description, said that the defendant was the person he desired to see, and thereupon went in search of the defendant. Held, that the evidence was admissible, to identify the body found as that of the person with whom the witnesses conversed, and to show that there was some business or other relation between the deceased and the accused. The testimony was not objectionable as hearsay evidence, and the court did not err in admitting it.</p> <p>3. Defendant was convicted of murder in the first degree. The conviction was had upon circumstantial evidence, and there was no evidence of express malice. Held, that when a homicide has been proved, that fact alone authorizes the presumption of malice, and, unexplained, would warrant a verdict for murder in the second degree. But express and premeditated malice cannot be presumed; and it was therefore error in the court below to overrule defendant’s motion for a new trial.</p> <p>4. See this case for evidence held to be insufficient to sustain a conviction for murder in the first degree.</p>