Smith v. State

Citations

• 22 Tex. Ct. App. 316
• 3 S.W. 684
• 1886 Tex. Crim. App. LEXIS 257

Syllabus

<p>1. Practice—Continuance.—A second application for a continuance which failed to state that the absent testimony could not be procured from any other source, and that the accused had reasonable expectation of producing it at the next term of the court, was insufficient, and was properly overruled.</p> <p>3. Same—Char&e of the Court—Bill of Exception taken generally to the charge of the court, specifying no particular error or errors, has no standing, and will not be considered by this court. In the absence of a proper bill of exceptions this court will examine the charge of the trial court only with regard to fundamental errors, or such as under all the circumstances of the ease were calculated to injure the rights of the accused.</p> <p>3. Same—Murder.—A former conviction of murder of the second degree operates as an acquittal of the higher grade, and should limit the charge of the court upon a subsequent trial to murder of the second degree, and to such inferior grades as may be indicated by the evidence. An unnecessary and erroneous charge upon murder of the first degree and express malice, especially in view of the charge that the defendant could not be convicted in the first degree, is not cause for reversal of a conviction for murder of the second degree.</p> <p>4. Same—Implied Malice.—In testing the sufficiency of a charge of the court, it must be considered as a whole. Omissions in one part of the charge become immaterial if they are supplied in other portions in such manner as to clearly instruct the jury upon the issue involved, and protect the rights of the accused against prejudice. See this case in illustration.</p> <p>5. Same—Self Defense.—See the statement of the case for evidence held insufficient to present the issue of self defense, and therefore not to demand of the trial court a charge thereon.</p> <p>6. Same—Insanity—Oase Approved.—The charge of the court in this case upon the defense of insanity is a copy of the charge upon the same subject i