Summers v. State

Citations

• 5 Tex. Ct. App. 365

Syllabus

<p>1. Evidence—Practice. — Objections to evidence will not be sustained when no reason was assigned therefor, and the evidence tended to prove any fact in issue.</p> <p>2. Same — Medical Testimony.—A surgeon or physician may be compelled to testify as to the result of a post-mortem examination made by him. He could not, however, be compelled to make such an examination.</p> <p>8. Same—Case Stated.—In a murder case, the State examined a physician, who declined to state the cause of the death of the deceased because his knowledge thereof was acquired solely by his uncompensated post-mortem examination of the deceased; and thereupon the State proved by an unprofessional witness certain fractures of the skull of the deceased, disclosed by the post-mortem examination. The accused did not make the physician his own witness, and the other evidence suffices to show the cause of the death. Held, no error to the prejudice of the accused. The Unprofessional witness was competent to state what he saw at the postmortem examination; and, if the defence desired the undisclosed knowledge of the physician, they should have made him their own witness, and have asked the court to enforce its disclosure.</p> <p>4. Express Malice. — This element of murder in the first degree was not correctly expounded by an instruction that “ express malice is where one, with a deliberate intent, kills another with an instrument likely to produce death.” But, the conviction being only for murder in the second degree, the inadequacy of this definition is not material error; nor was it to the prejudice of the accused when implied malice was properly explained to the jury.</p> <p>5. Same. — A homicide committed with a deadly weapon is not with express malice unless accompanied with the other ingredients of murder in the first degree, —to wit, a cool and sedate mind, and a formed design to kill, or to inflict serious bodily injury likely to result in death, without lawful authority, justification, mitigati