Murray v. State

Citations

• 1 Tex. Ct. App. 417

Syllabus

<p>1. Continuance.—An application for a continuance stated that the subpoena for the absent witness was not served, owing to his removal from the county, but failed to show that the subpoena had been lodged with, or returned by, an officer. Held, that the application was defective; for aught it shows, the accused may have retained the subpoena in his own possession.</p> <p>2. Murder—Charge op the Court.—On a trial for murder it was proved that the accused and the deceased had a quarrel on the day of, but some time prior to, the killing, and the court charged the jury to convict the accused of murder in the first degree if they believed from the evidence that the interval between the quarrel and the killing was sufficient for passion to subside and reason to resume its sway. Held, that the charge was erroneous, because, in effect, it withdrew from the jury any fresh provocation or other circumstances which may have transpired at the time of the killing.</p> <p>8. Same.—If fresh provocation intervened between preconceived malice and the death, it will not be presumed, but may be proved, that the killing wag on the antecedent malice.</p> <p>4. Same.—If death ensues from the voluntary use of a deadly weapon in a. manner calculated to kill, the law will infer an intention to kill, hut will not, therefore, presume the killing to be murder upon express malice, which is a constituent of murder in the first degree, and which must be proved aliunde, and, like other facts in the case, by evidence sufficient to-convince the jury of its existence.</p> <p>5. Reasonable Doubt as between the Degrees op Murder.—In trials for murder the law of reasonable doubt should be charged to the jury, not only upon the general question of the guilt or innocence of the accused, but also as between the different degrees of culpable homicide, so as to accord him the benefit of such a doubt as between a greater and a less degree.</p> <p>6. Murder—Alternative Penalty.—By the Constitution of 1869 jur