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APPEAL from the District Court of Fayette. Tried below before the Hon. L. W. Moore.

*1 By indictment, filed in the District court of Fayette County, on November 17, 1879,

the appellant was charged with the murder of William Finkelstien, on the twenty-first

day of October, 1879, by striking him on the head with a shovel. The conviction was

for murder in the first degree, and the punishment awarded by the jury was confinement

in the penitentiary for the term of his natural life. The trial was had in November,


Nat Holman was the first witness for the State. He testified, in substance, that he

knew the defendant, but was not acquainted with William Finkelstien, the deceased.

The first and only time he ever saw the deceased was at his, the witness's, gin, in

Fayette county, Texas, on the evening of _______, 1879. Deceased was then alive,

but suffering from a wound on the right side of his head, just above and behind the

ear. The wound was about two and a half or three inches long and about a half inch

deep. The skull was crushed in, but the skin was not broken. The indentation was

large enough to hold an egg. When the witness reached his gin that day, he found

the deceased lying on some bagging under the cotton shed, wounded as described,

with the blood flowing from his nose, mouth and ears. He was then alive, but

speechless. He muttered unintelligibly several times before his death, which

occurred some four hours afterward. Several persons were with the deceased when

the withess reached him, and were pouring water over his head, among whom

Cellis Holman and Felix Bridge.

Cellis Holman showed the witness the shovel with which the wound was said to

have been inflicted. The witness knew the shovel well. It had been in use at

the gin for several years, being used for shoveling cotton seed. It was a

large iron shovel, with a handle about four feet long, and weighed some eight

or ten pounds. At the place where the handle fitted in, commonly called the eye,

there was a double thickness of the iron, making the entire thickness of the

iron at that place about a quarter of an inch. Witness bought this shovel

because of its peculiar make, and had never seen another like it. If the wound

on the deceased was actually inflicted by this shovel, he must have been

stricken with the eye of it, as no other part of the shovel would make such

character of wound. Witness did not go up into the gin that day, but went up

there the next day??

Proceeding with his testimony, the witness said: "When I went up into the gin

next morning, I found, in the main room, a pool of blood, about the middle of

the walk running from the front door back to the gin stand. This pool of blood

was near where the shaft comes up through the floor. It was at a point about

opposite the middle of the second left hand cotton seed stall, as you go into

said room from the front door. There were three cotton seed stalls on the right

hand side as you went in said room from the front door, and each stall was

separated from the other by a plank partition. There were also three stalls on

the left hand side, but the one nearest to the gin was a sort of half stall.

These stalls were usually filled with cotton seed. A man standing at the gin

stand could not see to the floor where the blood was, but could have seen,

around the corner of the second stall, any person standing erect. I have owned

the gin for several years, and am perfectly familiar with its interior."

Witness saw the defendant just before the killing, but saw no more of him until

the last term of the court.

*2 On cross-examination, the witness stated that he was not present, and knew

but little about the killing. He reached the gin about two o'clock p. m. He

had no recollection of having previously seen the deceased. He was not at the

witness's house on that morning. Morgan Braker, Cellis Holman, Felix Bridge,

and four or five transient white men were at the gin when the witness arrived

there. One of these white men was named Russell, and another Roberts. Witness

was present at the inquest held by justice Smith, and wrote down the testimony,

but did not remember who constituted the jury. Witness was taking no particular

interest in the prosecution, but had said that if the defendant got his just dues

he would be hung. Cellis Holman was feeding the gin on the day of the killing.

The defendant was at the time, and had been for three months, in the employ of the

witness. Witness knew of no difficulty between the defendant and Cellis Holman.

With reference to this witness's testimony, the transcript recites as follows:

"In the absence of defendant's counsel, the district attorney asked where he was,

when witness replied in a low voice: 'I guess he has got enough of it.' The court

did not hear the remark. The attorney for the defense had absented himself without

the knowledge of the district attorney and whilst the district attorney was

examining the witness."

Cellis Holman was the second witness for the State. He testified that he knew both

the defendant and the deceased. The latter was killed at Nat Holman's gin in

Fayette county, in the month of October, but witness could not recall the year.

Witness was present when the deceased died. He was also present and testified

before the coroner's inquest. Witness was feeding the gin on the day of the

homicide. The duty of the defendant in the gin was to shovel up cotton seed in

the small room containing the gin stand, and take them to the stalls in the large

room. For this purpose he used a large iron shovel, which is the weapon with

which he killed the deceased. He had often used the shovel and was familiar with


While witness was at his work at the gin stand on that day, the defendant brought

him a woman's sack, saying that he had just bought it from a peddler down stairs,

and asked if witness thought it large enough for his, defendant's wife. Witness

told him to try it on, and that if it would fit him it would fit his wife. About

this time the deceased came up stairs and asked witness if he did not wish to

purchase something. Witness replied that he did not, that he had no money.

Deceased replied: "Yes, you have plenty of money." Witness then told him that

possibly he would go down stairs presently and look at his goods. Deceased then

turned to go down stairs, when defendant demanded of him to take the sack back,

as it would not fit his wife. The deceased looked back and said: "I don't do

business that way; that is the way children do business," and walked on. Defendant

thereupon reached back and secured the iron shovel. He caught it by the handle,

threw it up in a striking position, and followed the deceased. When defendant got

just about the corner of the partition dividing the first cotton stall nearest the

gin stand on the right hand side going from the gin stand to the front door, the

witness saw him strike forward with the shovel. Witness could not see Finkelstien,

the deceased, at that time, as he had passed the said partition, but could see the

defendant plainly. He saw the shovel as it went down, but could not see what it

struck, as, when it went down, the shovel part passed down on the other side of the

partition from the witness. The gin was running at the time, and making so much

noise that the witness could not hear the sound of the blow, or whether any thing

was said when it was inflicted.

*3 After striking the blow the defendant came back to the gin stand, threw down

the shovel, and said: "D____n him, I got him!" Witness stopped the gin, ran around

to the place where he saw the defendant strike the blow, and found the deceased

lying forward on his face, in the walk, with his head at a point about opposite

the middle of the second stall. He had a wound on the right side of his head,

just back of the ear, and was bleeding profusely. The defendant came up, and

witness asked him: "Sam, what did you kill the man for?" Defendant looked at the

man, laughed, said nothing, sprang out of the window and ran towards the river

bottom. Witness ran to the door and called a man who came with the deceased to the

gin, told him Finkelstien was killed, and he and witness, after washing deceased's

face, carried him down stairs and laid him on some cotton bagging under the cotton

shed. Witness saw the defendant plainly when he struck the blow. Witness, defendan

t and deceased were the only parties in the gin at the time of the killing.

Witness saw no more of the defendant until at the previous term of this court. He,

witness, showed Nat Holman the shovel with which the blow was struck on the same

day. It was a heavy shovel with a handle three or four feet long. The shovel was

usually used with both hands. Defendant held it in his right hand when he struck

the blow. Defendant did not offer to assist the witness, either to wash deceased's

face or to take him down stairs. He merely looked at deceased after he had felled

him, laughed and ran off. Witness thought he could recognize the man who was with

the deceased on that day, and pointed out a man present in court as the individual.

He was not certain the individual indicated was the man, but believed him to be.

Cross-examined, the witness stated that the deceased had a whip in his hand when

he came into the gin, and still had it when he started out. It was rather a large

sized whip, but witness did not take close enough notice of it to be able to

describe it. It was lying near and at the side of deceased when witness got to

him after he fell. Witness did not on a former trial of this case say that after

the deceased fell he still held the whip in his hand. Deceased made no effort or

demonstration to strike the defendant with the whip. If he had, witness would have

seen it. Witness at no time told Tom Braker and Felix Bridge that he did not see

the killing. Witness said nothing before the inquest about the defendant laughing

after the deceased fell, because no question was propounded to him on that point.

He merely stated that defendant looked at the man and ran off. Previous to this

killing witness and defendant had had difficulties--one or two little fights--but

had made friends, and witness had no grudge against him at the time.

The witness denied that he had at any time after the killing told Handy Holman that

he now "had Sam just where he wanted him;" that he "was the only witness against

him and could swear what he pleased." He had never threatened to "get even" with

the defendant. Witness did not examine the sack purchased by the defendant. When

defendant asked him if the sack would fit his wife, witness told him that it would

if it would fit him. There were three stalls on each side of the big room. Witness

was standing at the gin stand, feeding it when the blow was struck, and was facing

the big room. To feed a gin requires care, but in feeding one the witness could look

about and around without cutting his fingers in the gin. Witness denied that he had

ever said to defendant's counsel that, when he asked defendant why he had killed the

peddler, the defendant asked: "What! have I killed him?"

*4 Re-examined by the State, the witness testified that he was standing some nine or

ten feet from the defendant when he struck the blow, and was looking directly at him.

The deceased could not have struck the defendant without the witness seeing him.

Witness did not know the exact distances in the gin, and when he spoke of distances

did so upon opinion. When witness went to the deceased after he had fallen, the

whip lay a little to his right on the cotton seed. Deceased had the whip in his hand

when he started off. The first stall on the right hand side going from the gin stand

to the front door is partitioned from the second stall by a plank partition about

seven feet high, but on the side nearest the gin stand there was no partition between

the first stall and the way leading from said gin stand. The cotton seed in said stall

was kept from falling in by an old press door, which was about four feet long, and three

and a quarter feet wide. Witness could easily see over said door, and there was nothing

to obstruct his view beyond, between the gin stand and the dividing partitions between

the first and second stalls.

M. Lauderstien was the next witness for the State. He testified that he was the man

pointed out by the last witness as the companion of the deceased at the time of the

killing. The witness Cellis Holman, was mistaken; this witness was not the companion

of deceased on that occasion. The deceased's companion at that time was one Caimer,

now in Mississippi or Kentucky. The witness, however, had traveled with deceased

before his death for five years, peddling, and they were together on Holman's place

about a week before the killing. The witness Cellis Holman had often seen this

witness and deceased together. Here the State closed.

T. W. Smith was the first witness for the defense. He testified that he was a justice

of the peace at the time of the homicide, and held the inquest on the deceased's body.

The papers containing the evidence were handed by witness to B. D. Shropshire, county

attorney, and he failed to turn them over to the proper officers; for which failure

the witness was indicted. Witness had not since seen the said papers, and had no idea

what had become of them, nor could he now remember their contents. Witness could not

remember the parties who constituted the coroner's jury. At this point the district

attorney stated that he would admit the loss of the papers, and consent that parol

evidence be received of their contents.

C. Michaelis was the next witness for the defense. He testified that he was a carpenter

by trade, and that he could draw a correct diagram of a given place. He drew the diagram

in evidence, which is a diagram of the Nat Holman gin, in Fayette county. It was

prepared on the day preceding this trial by the witness, who, for the purpose of

drawing it, visited the said gin in company with the defendant's counsel and two

colored men. The spots in the center of the building, as indicated on the diagram,

represented blood spots, though witness could not of his own knowledge say that they

were blood spots. The witness, however, saw the spots. They were on a small square

movable platform in that room, which platform covered the hole in the floor through

which the shaft passed when the gin was in motion. The large room is thirty-four

feet long. The distance from the gin stand to the blood spots is twenty-eight feet.

There are stalls for cotton on each side of the large room, but there were no

partitions in them when witness was at the gin. It would depend upon the height

of the partitions whether a man could see from the gin stand to the middle of the

second stall.

*5 Cross-examined, the witness stated that, if the partition between the first

stall on the right as you go from the gin and the way running between the stalls

was a door four feet by three and a half feet, a man at the gin stand could easily

see to the corner of the partition between the first and second stalls.

I. B. Holloway, district clerk, testified, for the defense, that he was district

clerk when Finkelstien was killed. He knew nothing about the papers containing the

proceedings of the coroner's inquest in that case. He had never seen such papers.

Handy Holman was the next witness for the State. He testified that, when Finkelstien

was killed, he was in the field on the Nat Holman place. Witness had a conversation

with Cellis Holman a few days after the killing occurred, in which he asked Cellis

if he saw the killing, to which Cellis answered that he only saw the defendant raise

the shovel and make the blow; that he did not see the blow when it fell. Cellis

Holman and the defendant had a difficulty a short time before the killing.

Tom Braker testified, for the defense, that he lived on Nat Holman's place, and was

familiar with the gin house. Witness was at the gin house a few days before this

trial, along with the attorney for the defense and other gentlemen, and pointed the

blood spots out to them. Witness knew them to be blood spots, because he saw them

shortly after the killing. There were stalls on each side of the big room, six or

seven feet high. A man standing at the gin stand could not see the point where the

blood spots were. He could, however, have seen a man throw up a shovel with a five

foot handle. Witness could not say that a man standing a few feet back from the

blood spots could not be seen from the gin stand. The partition between the end of

the first stall, near the gin stand, and the walk leading by it was not, at the

time of the killing, constructed of an old three foot door, but was a partition six

or seven feet high. This the witness knew, because his cotton was in that stall.

Witness saw the woman's sack, which was the cause of this difficulty. It was old,

moth eaten and full of holes. "If a man was standing behind the blood spots, and

another was standing a few feet behind him, and nearer the gin stand, a person at

the gin stand could see the latter, but not the former."

Felix Bridge testified, for the defense, that he was picking cotton in the

neighborhood at the time of the killing. Soon after the homicide occurred, Cellis

Holman sent for the witness and explained to the witness how the homicide occurred.

He said that the deceased was a peddler, and, at the gin, sold the defendant a

sack, with which the defendant became dissatisfied; that defendant asked him if

he, Cellis, thought it would suit his, defendant's wife; that he, Cellis, replied

to the defendant: "It may suit you, but it won't suit your wife;" that thereupon

defendant offered the sack back to the peddler, and demanded return of the purchase

money; that the pedler replied: "I do not do business that way," and turned and

walked off, when the defendant picked up the cotton shovel and followed; but that

he, Cellis, did not see the defendant when he struck the blow.

*6 On cross-examination, the witness stated that he was the defendant's father-in-law.

This conversation occurred a few days after the killing. The witness, at that time,

was somewhat excited about the affair. No one was present at this conversation, save

the witness, Cellis and the peddler's partner. Others came up afterward.

Monroe Richardson testified, for the defense, that he was in the neighborhood when

the killing occurred. Cellis Holman told him about the attendant circumstances the

day after the homicide occurred. He said, in that connection, that the defendant

came running by him, and said: "I have hit that fellow;" that he went up to the man,

and asked the defendant: "Sam, what did you kill this man for?" That defendant

replied: "What! Have I killed him? Is he dead?" and then jumped out of the window,

and ran off.

Witness worked for Mr. Nat Holman, and was familiar with the gin. A man could not

occupy the gin stand and see to the middle of the second stall; at least, the

witness could not. There were stalls on each side of the big room. Witness did not

know the height of the partitions.

Cross-examined, the witness stated that he did not know whether or not the partition

nearest the gin stand was formed of a small door. No one was with witness when he

had the conversation with Cellis, deposed to. Witness had not thought of that

conversation since, until called upon to testify in this case. Nothing has occurred

to fix this conversation in the witness's mind. Witness had had no other conversation

with witness Cellis. Here the defendant rested.

In rebuttal, the State produced several witnesses who testified that the reputation of

the State's witness Cellis Holman was above reproach or suspicion.

Nat Holman, recalled for the State, testified that an old press door, four feet by

three and a half, was used to enclose the side of the first stall nearest the gin

stand, which side was not planked up. It was thus used to prevent cotton seed from

falling out on the walk. When used for this purpose, it was set up on its side.

When not in use, it generally lay flat on the floor. Witness did not know its

position on the day of the homicide.

The general and requested charges are here incorporated in full, in accordance

with the direction of the court. The general charge reads as follows:

"The defendant is on trial, charged with the murder of Wm. Finkelstien, and

pleads not guilty??

Every person of sound memory and discretion, who shall unlawfully kill any

reasonable creature in being, within this State, with malice aforethought,

either express or implied, shall be deemed guilty of murder. Murder is distinguishable

from every other species of homicide by the absence of the circumstances which reduce

the offense to negligent homicide or manslaughter, or which excuse or justify the


All murder committed with express malice is murder in the first degree, and all murder

committed with implied malice is murder in the second degree, and the distinction

between express and implied malice determines whether murder is of the first or

second degree.

*7 Malice means that state of a wicked and depraved mind fatally bent upon mischief.


The important inquiry in determining the existence of express malice is, do the

external circumstances, the acts and the conduct of the accused at the time, before

and subsequent to the killing, if such there be, indicate a cool and deliberate mind

and formed design to kill? If so, there is express malice.

There is no certain or definite space of time necessary to intervene between the

formed design to kill and the fatal blow. A single moment of time may be sufficient.

All that is required is that the mind be cool and deliberate in forming its purpose,

and that the design to kill is formed.

If you believe from the evidence that the defendant did kill Wm. Finkelstien with

express malice as before defined, you will convict him of murder in the first degree.


Implied malice is what the law implies from every voluntary killing of a human being,

when the circumstances, upon one hand, show no express malice, nor upon the other any

excuse justification or mitigation, nor reduce the offense to manslaughter. Every

voluntary killing of a human being without deliberation, from some rash, inconsiderate

impulse, would be upon implied malice, and would be murder in the second degree.

If you believe the defendant did kill William Finkelstien without express malice,

yet if you believe such killing was committed under such circumstances as that malice

is implied, as before defined, you will convict of murder in the second degree.

If you have any reasonable doubt of the guilt of the accused, you will acquit, and

so you will acquit of any grade of the offense of which you have any reasonable doubt.

If you find the defendant guilty of murder in the first degree, you will assess his

punishment at death, or by confinement in the penitentiary for life.

If you find him guilty of murder in the second degree, you will assess his punishment

by confinement in the penitentiary not less than five years; in either case stating

the degree of murder.

The jury are the judges of the credibility of the witnesses, and weight of the


L. W. MOORE, Judge."

The requested and refused charges read as follows:

"First. The jury are the sole judges of the weight to be given to the testimony of

each witness, and the credibility of each witness. They can discard a portion of

the testimony of a witness or all of his testimony. A witness may be impeached by his

own contradictory statements, or by his character for truth and veracity in the

neighborhood in which he lives being successfully attacked. In either case the jury

has the privilege of discarding his evidence.

Second. Although the law implies malice in case of unlawful killing by means

calculated to produce death, still in such case the burden of proof does not shift

from the State to the defendant, but the burden remains on the State to prove the

degree of the offense aliunde the actual killing.

*8 Third. Every person is presumed to understand the probable result of his acts, and

when an unlawful act is clearly shown to have been committed, it is for the defendant

to show facts which mitigate, justify or excuse, so that a reasonable doubt at least

may arise upon the entire evidence as to his guilt. If the jury believe from the

evidence that the deceased, William Finkelstien, said anything or committed any act

at the time of the killing, which would mitigate, justify or excuse the killing, they

should take into consideration such saying or act, and find their verdict accordingly;

that is, either find the defendant guilty of some lower grade of offense than murder

in the first degree or acquit the defendant.

Fourth. (Murder in the first degree has been defined to you.) A murder committed under

the influence of sudden rage, resentment, passion or anger at some insult offered or

wrong done to the defendant by the deceased, at the time of the killing, cannot be murder

in the first degree unless coupled with something said or act done by the defendant at

the time, before or after the killing, tending to show malice as defined by the


Fifth. In impeaching a witness by proving his bad character for truth and veracity,

such character must be notorious in his neighborhood, and while the proof may be

made by one witness, still, in weighing the evidence, the production of one witness

would not ordinarily be satisfactory. So, in proving that his character is good for

the same, it should be notoriously good in the neighborhood, and one or two witnesses

to that fact will not ordinarily suffice."

"These charges are refused because, so far as they are correct legal propositions, and

so far as the facts require the application, they are embraced in the charge of the


L. W. MOORE, Judge."

"If the jury believe from the evidence that there has been no malice proven, either

express or implied, they cannot convict the defendant of murder in the first degree.


Where the fact of the killing has been clearly shown, and that it was done under such

circumstances as in law will mitigate, excuse or justify the act, the law in such

cases implies malice, and makes the killing murder, but it would be murder of the

second degree."

"Refused because embraced in the charge of the court.

L. W. MOORE, Judge."

The motion for new trial embraced the questions involved in the opinion??




Where an absent witness is expected to prove statements made by defendant himself,

his motion for continuance must show that they are part of the res gestae, or that

the testimony is competent for some other reason.



An application for a continuance because an attached witness had been released,

without defendant's authority, eight days before the case was reached for trial,

was properly refused where it failed to show that he did not learn such fact in

time to have secured the witness by the service of a new process.




On a trial for murder, it was not error to refuse to grant the defense time to take

down the testimony.



Newly discovered evidence as cause for a new trial is not sufficient when its

materiality, probable truth, and exculpatory nature are not made manifest.



An exception that "the court erred in the charge" is too vague to invoke a revision

of the charge given by the trial court, but in felony cases it is the practice on

appeal to revise the instructions given to the jury.



In a criminal prosecution for homicide the defense reserved exceptions on the ground

that during the progress of the trial the judge absented himself from the bench and

court room without notice to counsel and that during his absence the state's counsel

proceeded with the examination of a state's witness and when the defense objected to

the manner of interrogation there was no judge present to sustain or overrule the

objection and illegal and damaging evidence went to the jury. But the judge's

explanation states that his absence was very brief and of necessity and he

supposed the counsel had taken notice of it; that counsel for the defense did

not complain of any evidence introduced during the interval but said he had

objected to some testimony and counsel for both sides said they were awaiting

the judge's return and the defendant's objection to the testimony was then

presented. Held, that the bill of exceptions was defective because it did not

disclose what the illegal testimony was.



In a prosecution for homicide the defense reserved an exception because the trial

court refused to admit evidence of the magistrate who held an inquest on the body

of the decedent, in the absence of "the papers." The bill of exceptions failed to

show what "papers" it referred to and the trial court received the evidence of the

magistrate except with regard to the loss of the record of the inquest and the state

admitted the loss of that record and conceded the right of the defense to prove its

contents. Held, no error was apparent.



That a defendant's challenge for cause was improperly overruled, and he was thereby

forced to the peremptory challenge of a disqualified juror, is not error of which he

can complain unless he exhausted his peremptory challenges before a full jury was





Where one, with a sedate and deliberate mind and formed design, kills another, there

is express malice, although the design is formed immediately before the killing.



Murder in the first degree can be perpetrated by other means than those specified in

Pen.Code, art. 606 [Vernon's Ann.P.C. art. 1257], and the express malice which

characterizes it may be evidenced by other external circumstances besides lying

in wait, antecedent menaces, former grudges and concocted schemes, and even in a

sudden difficulty homicide may be committed under circumstances of such enormity,

cruelty or deliberate malignity as will suffice to show that it was done with

express malice and is murder in the first degree.


Evidence held to sustain conviction of first degree murder.


In a prosecution, tried in 1882, for homicide committed in 1879, testimony of a

witness for the state relating to the homicide in question, the date of which was

fully proved by other witnesses, was competent, although the witness was unable

to give the year in which the killing occurred.

A. S. Chevalier, filed an able brief for the appellant.

J. H. Burts, Assistant Attorney General, for the State.





The appellant, Sam Lewis, was indicted for the murder of William Finkelstien, a

peddler, on the twenty-first of October, 1879. He was tried and convicted of

murder in the first degree; his punishment being assessed at confinement in the

penitentiary for life. From this judgment and sentence he appeals and relies

upon a number of assignments of error.

His first error is the action of the court in overruling defendant's motion to

quash the venire upon the ground of the insufficiency of the return of the sheriff

touching his diligence to find and summon certain veniremen. In regard to the jurors

not summoned the return of the sheriff is as follows: "And the following named

persons whose names appear upon said venire were not summoned for the following

reasons, to-wit: F. Kendel, W. Carles, C. H. Burns, D. P. Croft, John Burk and W. S.

Lane, are all out of Fayette county, and could not be found in said county although

diligent search was made for them by the sheriff of Fayette county and his deputies;

and H. C. Gerdes, John Frierson, A. Groos, W. Dick, August Mischer and N. M. Cockrell

were not found in Fayette county although diligent search was made for them at their

residences and places of business, and at any point at which they were likely to be

found by the sheriff of said Fayette county and his deputies." Article 614, Code

Criminal Procedure requires the diligence to be stated. This return, we think, fully

complies with the Code, and, if true, great pains was taken to summon these jurors.

*9 By the second assignment it is insisted that the court erred in overruling defendant's

motion for continuance.

Jack Lewis, of Colorado county, S. Smith, of Bastrop, and Handy Holman, of Fayette,

were the witnesses desired. Lewis was attached by the sheriff of Colorado county,

and was released by the order of John Mitchell, Esq., on the fifteenth day of November,

1882. Defendant in his motion states that Mitchell was not an attorney in the case,

and that he was not authorized to release this witness Lewis. This may be true. The

question, however, is one of diligence. Lewis was discharged on the fifteenth day of

November, and the cause was not reached or called for trial until the twenty-third

of that month. We are not informed by defendant's motion at what time he learned that

Lewis had been released from the attachment. It may have been the same or the next

day, leaving ample time for another attachment to have been issued, served and the

attendance of the witness secured.

Again, the evidence of said witness Lewis is not shown to be competent. In his motion

defendant says "that he expects to prove by said witness that affiant told witness,

after the murder, * * that he did not intentionally kill deceased, but deceased struck

him over the head with a buggy whip, and he returned the blow with no intention of

killing the deceased." That "affiant told witness," etc. When and where did he tell

the witness? To be admissible, the statement of affiant (the defendant) must have

been res gestae, and all of the facts and circumstances, the time and place, must

be stated, which are necessary to show that, in fact, his statement was res gestae.


By the next witness the defendant expected to prove "that there existed in the county

so great a prejudice against defendant that he could not obtain a fair and impartial

trial in said county; that he is a material witness on a motion for change of venue.

A sufficient answer to this is that there was no motion made for a change of venue.

If defendant had filed his motion for that purpose, and desired witnesses to establish

his right to a change, the court no doubt would have caused proper process to be

issued, and would have given defendant time to assert his right in regard to this

motion. But, as there was no effort made to assert his right to a change of venue,

we presume the defendant abandoned this purpose.

The other witness is Henry Smith. By this witness defendant expects to prove "that

Holman (a very important witness for the State) before the jury of inquest did not

swear that affiant laughed when he saw that deceased was dying." It is not stated

in the motion for continuance that Holman said anything upon this subject at all.

His attention was not called to this matter, nor does it appear (from the motion)

that the negative of what the witness swore on the trial was even so much as hinted

at in his testimony before the inquest.

*10 That a witness fails to state everything that was done and said by the parties

at the time of the occurrence of the facts to which he swears is not a contradiction.

To be such, he must make a statement in regard to the fact. If he omits a fact,

his attention should be drawn to it, or, if he is asked if what he has stated was

all that was said by the party or parties, and he answers in the affirmative, and

upon the trial he embraces other facts, in his evidence, than those related by

him before the inquest, the defendant would have the right to show this. This,

however, is not the state of the question in the case in hand. As presented to

us by the record, Holman simply testified to some facts which were omitted in his

evidence before the inquest, and these not in conflict but harmonious with his

evidence there given.

The court did not err in overruling the motion for continuance.

It is assigned as error that the court erred in holding the juror Zreemer competent.

This juror was challenged peremptorily, and the defendant did not exhaust his challenges.

It is now settled by this court that, to complain of the action of the court in

erroneously holding a juror competent, the defendant must exhaust his peremptory

challenges. We are of the opinion, however, that the juror was impartial and

competent. The juror stated that when he heard of the killing "he said the defendant

ought not to have killed the deceased, but that he had formed no opinion, nor then

had any opinion about the case."

Fourth assignment is "that the court erred in permitting Nat. Holman, a witness for

the State, but one who was not present at the killing, to give his opinion of the

manner in which the blow was struck, and the relative position of the parties, when

the State had failed to show witness to be an expert in such matters." Holman

described the wound minutely, and the shovel (the weapon used), and then gave his

opinion that, "if the wound inflicted on Finkelstien was made with the shovel, he

must have been hit with the eye of it; no other part of the shovel could make the

same kind of a wound as was on him." This evidence, to wit, the witness's opinion,

was not competent. But was the defendant injured by it? We think not. The wound was

of that character, taken in connection with the formation of the shovel, as to place

it beyond cavil that, if inflicted with the shovel, it must have been with that

part known as the eye. This opinion of the witness was perfectly patent, and, whether

expressed or not, the jury would have irresistibly reached the same conclusion. If the

State had been seeking to identify the weapon with which the blow was inflicted, by

this evidence, we would hesitate before sanctioning such means. This, however, was not

the case, there being an eye witness to the fact that the blow was inflicted with the


5. "During the progress of the trial the honorable judge absented himself from the

court room, and remained outside without notifying counsel. The counsel for State

continued to examine his witness in the absence of the court, and when counsel for

the defense arose to object to his manner of interrogating the witness, no court was

present to sustain or overrule the objection to the evidence, and during this interval

illegal and damaging evidence to the defense went to the jury." The record informs us

"that the presiding judge retired under a call of nature for a brief minute, supposing

the counsel would take notice thereof. Counsel for defendant did not complain of any

testimony introduced in his absence, but stated that he had offered objections to some

testimony, and that counsel for both parties said they waited his return and then

presented the objection to the testimony."

*11 In the first place, we are not informed of what the illegal and damaging testimony

complained of by defendant consisted. This is fatal to the bill of exceptions. Again

, the momentary absence of the presiding judge during the examination of a witness,

under the circumstances mentioned in the record, will not of itself justify this court

in reversing the judgment. If illegal or improper evidence had been introduced by

the State, over objection of defendant, during this absence, a motion to exclude would

have resulted to his relief against such evidence. But we cannot hold the opinion of

counsel that there was illegal evidence admitted; the facts must be set out that this

court may pass upon their illegality. Notwithstanding the very high respect in which

the counsel for defendant is held by this court, we must be permitted to say that we

view this whole matter as frivolous.

Sixth assignment: "The court erred in admitting the evidence of Holman (a witness for

the State) as to the murder, when the said witness knew nothing about the date of the

killing, not even being able to give the year of the killing." The date of the killing

was very clearly proven by other witnesses. The witness Holman referred to the same

homicide. That he failed to remember the year is no objection to the competency of

his evidence.

6 1/2. "The court refused to grant the defendant time to take down the testimony." In

this there was no error.

7. The court refused to give any of the charges asked by the defendant. The proper

charges requested were embraced in the charge of the court. The other charges refused

were without facts, or were upon the weight of the evidence, and were properly


7 1/2. "The court refused to admit the evidence of T. W. Smith, the justice of the

peace who sat on the inquest held over the body of the deceased in 1879, in the

absence of the papers." What papers? We may presume that the testimony taken before

the jury of inquest was reduced to writing. But certainly bills of exception should

be more specific. What facts did defendant propose to prove by this witness? We know

not. Were they competent and beneficial to the defendant? Here again we need light.

But the explanation of the learned judge, we think, shows, that there is nothing

whatever in this billl. We are informed by the record that the State admitted the

loss of the papers, and offered to permit any testimony showing their contents, and

that the loss was known upon a former trial, and it was only as to the loss of the

papers that the court would not hear further testimony by Smith. What necessity was

there for any proof of the loss of these papers by Smith or any other witness, when

their loss was an admitted fact?

8. The court gave verbal instructions to the jury, to wit: "that they should not cast

lots in coming to a verdict." In this there was no error.

9. "The court erred in the charge." The bill of exceptions points out no error in the

charge. However, this being a felony, the charge of the court has been thoroughly

examined, and we find that the law applicable to the case made by the evidence was

fully and clearly given in charge to the jury.

*12 10. "The court erred in refusing to grant a new trial in the case, on the grounds

set forth in the motion of defendant therefor." In addition to some of the matters

already mentioned, the motion for new trial contained two others: 1, newly discovered

evidence; 2, that the verdict of the jury is contrary to and not supported by the

evidence. This newly discovered evidence consists of the facts set forth in the affidavit

of B. D. Shropshire, Esq., in regard to those lost papers, already mentioned in this

opinion. Neither the motion for new trial nor the affidavit of Shropshire indicates

that a material fact, beneficial to the defendant, could be established by those papers,

if found. The motion seeks a new trial upon the ground that there is a probability

of finding those papers. Suppose they should be found, how would defendant be

benefitted by them? To authorize a new trial upon this ground, this must be shown in

such clear light as to place it beyond doubt. To be explicit: 1. The newly discovered

evidence must be made to appear material. 2. Not in conflict to such extent as to

render its truth improbable. 3. It must be beneficial, exculpatory, in its nature.


Appellant being convicted of murder of the first degree, it is urgently insisted by

his learned counsel that the evidence fails to support the verdict finding him guilty

of that offense; and it is very plausibly argued by counsel that, as there was no

proof that defendant took the life of deceased by starving, torture, etc., or by lying

in wait, or that he had threatened to kill him, or entertained grudges against him, or

had concocted schemes to do him bodily harm, that, therefore, there was no proof of

express malice. In this we cannot agree with counsel for defendant.

Express malice is where one with a sedate and deliberate mind and formed design kills

another; and this formed design is evidenced, proven, by external circumstances

discovering that inward intention; and this formed design, inward intention, is

discovered, made manifest, by such external circumstances as taking life by starving,

torture, etc., or by lying in wait, or antecedent menaces, former grudges and concocted

schemes to do bodily harm. These are illustrations of the external circumstances which

discover the formed design, the inward intention, but they do not exhaust the whole

field of facts and circumstances by which the formed design, the inward intention,

may be discovered.

If it is shown by any fact or circumstances--is made manifest--that one with a sedate

and deliberate mind and formed design, kills another, the killing would be upon express

malice, and these external circumstances discovering the formed design may transpire

at the time of the killing, as well as before. "For though the killing be upon a sudden

difficulty, it may be attended with such circumstances of enormity, cruelty, deliberate

malignity, cool calculating compassings, or even calm demeanor and absence of passion,

as will be sufficient evidence to establish the inference that the killing was the result

of a sedate, deliberate mind and formed design to take life or do some great bodily

harm. Acts and admissions or other language of the prisoner, even after the mortal

stroke or killing, may often be pertinent evidence as tending to show express malice

at the time of the killing." The last two rules apply with great force to the facts

in this case.

*13 (The Reporters will give the statement of facts, charge of the court, and the

refused charge.)

We are of the opinion that the evidence supports the verdict. We have given every

question raised by the record and brief of counsel our most careful consideration,

such consideration as the gravity of the case demands, and have not discovered an

error in the record such as will warrant a reversal of the judgment.

The judgment is affirmed.


Tex.Ct.App. 1883.


15 Tex.App. 647, 1883 WL 9007 (Tex.Ct.App.)