Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-05
DAVIS vs.. STATE
Motion for Rehearing 0yerruIed by
Judge Hurt Of the Court of
Appeals.
j. ". Davis sentsnce Stands as Rendered by
the Lower Court Unless the Gov
ernor Interferes.
Special TO the Gazette.

AUSTIN, Tex, June Ain the court of sp-
peais to-day decision was rendered in the mega
tive in the case Off. W. Davis VS.. the Slater
from Fort Worth on motion for rehearing.
Following is the opinion: We have read care
fully the motion and brief thereon, and
have listened with pleasure and interest
to the arguments for and against
the same. As in the first opinion,
in this we will discuss but one question, all the
other supposed errors being fully met by the
brief for the state. As there is some evidence
tending to reduce the ohense from murder OF the
first degree to murder of the second degrees,
light, counsel for the motion contend that It Is
not only the duty or the court below to instruct
the jury on the less degree. but
error, whether the omission wss objected to at
the time or not. We concede that under such
state of case it would be the duty of the
court to charge on murder Of the second degree,
because this is required by the statute, but as
there were no objections made to the charge
''because of this OMISSION at the time
SO to bring the case within
the provisions Of Article $50, c.. c. s., does
it follow that the judgment must be reversed
whether the defendant excepted to the charge or
not? This is the question, aud we understand
that counsel for the motion assume the afirma-
tive, contending that il there had been evidence
tending to present murder OF the second
degree or any degree Of homicide
less than murder OF the first degree the judge
must charge on the less degree or degrees,
whether requested or not, and that failure to
do SO will work reversal OF the Judgment,
though the charge was not excepted TO at the
time. If this proposition be correct, the party
who fails to except to the charge occupies .
position as favorable as would one who objects.
Diligence Ia bringing forward the objection at
the earliest opportunity has no reward, the
careful and the diligent and the care
less and negligent =, standing on the
same plane. in this connection, we
call attention to the opinion Of Roberts,
chief Justice. In Bishop VS.. the State [4s Tex.
1901 he says: '.'This difference in the rule de-
the action of court is made is in harmony with
the rules Of judicial proceedings, generally that
a party who makes an objection at the proper
time, which is usually the first practical oppor-
tunity, shall have his objection more fsyorably
considered than if it had been inopportunely de-
layed.'' In the above the chief justice is wrong,
if counsel for appellent be right. The statute
provides, is well known to the profession, that
Hthere be error in the charge in felony case,
and u is excepted 10 at the time OF the trlal the
judgment shall be reversed. But suppose there
be error and the accused fail to except, will
the judgment be reversed in all such cases? By
no means. We will let Chief Justice Roberts
state the rule applicable TO such state of case
1t is to be particularly noticed that the record
shows, and properly by bill Of exceptions, in
this case, that this charge was excepted to by
defendant counsel at the time of trial. and be-
fore the case had been submitted to
the jury. and before they had retired to
consider of their verdict, and that this an
opportunity was given to the Judge to correct or
withdraw the charge If he had deemed it to have |
been improper upon or q reconsideration Of it |
then made before the first admission of the case |
to the jury. This, in reference to the provisions
of our code Of criminal procedure, will BE-
found 10 be an important consideration in this |
case on appeal to this court by Ihe exceptions |
having been rendered, and shown by the bill of |
exceptions to have been made at the time of the |
trial, and be much more beneficial 10 the de- |
PENDANT than il not then made, but made only |
afterwards on motion for new trial. If such |
charge is not excepted to at the time of trial,
but presented in a motion for new trial, |
which is the next point at which 1t could |
be presented, then its consideration by the court
rule. which would be whether or not such |
charge was an error, which under all the cir /
cumstances exhibited in the record was cal
culated to injnre the rights of the defendant, and
which is prescribed as one of the grounds for
the granting of 5 motion for new trial in the
following language: Where the court has
any other material error calculated to iniure the
riGats OF the defendant With what degree
of force must the evidence be that tends to es
tablish an ohense or tends 70 mitigate the Of
Tense charged in order 10 require charge ap pll-
cable thereto? Chief Justice Roberts says that il
its force is deemed to be very weak, trivial or
light and its application remote the court is not
required 10 give 9 charge upon it. lion the other
hand, it is pertinent and favorable as that it
would be infnenc ed By it in arriving at their
verdict, the court should charge SO as to furnish
them with the appropriate rule of law upon the
subject. Bishop vs.. the Stated Hence, m
less the evidence tending to present less degree
Of an ohense or any theory OF defense
pc SO pertinent ana IoIctpie tnas IL mignt be
/
uenced by it in arriving at their verdict, fail
1re of the court to charge thereon would not be
ground for a reversal in the absence of ex-
septions. This position is in exact harmony
With the first opinion in the case, and in accord
with Bishop VS.: the State. super and q number
IF cases decided by this court notably, Gun
bingham vs.. the State ~ Appeal, s6l, Elan VS..
,he State TIC Appeal, 4Ol and Leeper ct al. vs..
he State. present term. [see. also,
Johnson the State. p Tex. 1851
,e found in the opinions of the court,
nut the principle is well settled and is absolutely
correct, WHISTLER the court has always adhered
o 1t or not, that in the absence Of exceptions to
he charge OF the court. for the court to reverse
he evidence tending to present phrase of the
ase or theory favorable to the accused must be
o pertinent and favorable that it
hat the jury could be influenced by it in arriv-
ng at their verdict Unless tn evidence be of
UGH a character, no injury appears, no injury is
robabIe, not possible, but probable, and unless
his appears there is no gtound for a
eversai of Judgment, and 70 reverse in
he absence OF probable injury would
e contrary to principle; TINS ms W.. would be
hough excepted to, but for the statute. Was
be evidence presenting murder OF the second
egree of such force and pertlnency as to render
reasonably probsble that the jury would have (
cen influenced thereby in arriving at their ver-
let? As there was no exception to the charge,
his is the vital question. Counsel OF the mo-
ION in their argument carefully aYoided dis {
ussion of the question, when it was I
ne very issue for discussion, and to
etermi1e this issue the facts must be carefully
zauained. When these are consulted. instead
presenting murder in tie second degree with {
lch force and pertinency as would render it
probable that the Jury would be in /
uenced thereby in arriving at their verdict, and
very feebly OF lightly iicated. This being {
le case no injury is probable. and hence 10 re- '
ersible error. We are of the opinion thar there q
no reason why the motion for Tehearing I
,onId he 0raufed and Il Is therefore oYerruI led I