The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-05-31


the examination was made. aud at the
time OF the trial. and was permissible as
tending TO contradict the experts who tcs-
titled he was Insane. to shed light Oh the
question OF sanity at the time OF the
commission OF the oncnsc, and was by
the charge Of the court properly limited
II would he a strange doctrine Indeed
that would permit defendant TO select and
Introduce isolated eNculpatory facts. aud
then refuse 10 permit the State to contra
diet or explain them. This would BE- a
tuvesty upon Justice. and IN violation OF
the fundamental rules underlying and gov
erning the ascertalnment OF tho truth OF
any fact In Issue,
VI. Regarding the exclusion OF the tcs-
timony OF pr. Srnoot. as an expert, II Is
doomed sufficient TO say that he Is doe
tor Of divinity and not doctor OF mcdl-
Cinc and mAdc no prctonso or cialn, 10
being an expert on disease Of the mind,
IL Il true the examination developed that
he had read many hooks on normal and
mental philosophy -nothing however, out
Of the ordinary COURSE OF study necessary
to the attainment of polite accomplish
monts In his profession, as distinguished
from special study OF insanity The
| trial court qualities this bill as follows:
! 'rhat witness was offered as an expert
( witness and objection sustained because
witness did not qualify himself as an ex-
| pert and he had already testtncd AS a
! laymau as TO defcndauts sanity as shown
| by the statement OF facts"
| II Ia hard to conceive how this Witness
not oven claiming to be an expert or prv'
| tending to know or that he could give the
| clinical history. pathological theories.
! prcguosis diagnosis or treatment nf any
! disease of the brain, or any form of sanity,
| could possibly hr regarded Us an expert
| tudor tho predicate laid as IL appears
| In this record he was clearly incompetent
! to testify Ms an expert. Thoro woulu hN
| as much reason to require the superinteud-
| cut OF tho lunatic asylum TO demo ms
| shade OF doctrinal difference between tho
! seventh DAY Adventist and the Hard Shell
| Baptist, as there would to have required or
! permitted Or Smoot to have tcslhied as
an expert in this canc
VII. Appellant assails the charge of the
cour, In Ave particulars. The objection
will be discussed IN the order presented
by appellant
Az preliminary TO n discussion OF the
| churso | vii state there is not hne
gpntunce or word In the cntlro charge NOT
authorized and demanded by the evidence
and approved by the great weight OF au-
thority.
l. il Is coutcndcd that the latter clause
of paragraph III, gave the jury the on
ton 70 And defendant guilty OF nurau'
In the nrst degree upon either eSpfeAs ''
implied malice. THE paraSrnph OF w
charge when read AS a whole and ophslu
cred In connection With tho paragraph ue
filming eNpress malice, ~ not open 10 ih'
objection urged The hrst subdivision o
nls paragraph Informs the Jury that !
nuu,ilant did ms charged IN the tndict
,npni un,nwnily, with malice utorc-
thought. with sedate nHd deliberate min,
and formed design to xii. did kll Anna VI
Burt; by" thorp al the menns nlrsru IL
tho Indictment are sot outl, then ma mn
~ the first dDErtN. 1 III
court I'm paragraphs T. S, aud 10 prop
.rlv defined express nnlice aud the jury
clearly and dlstincuy told they must be
iitvo it, existence beyond reas"hnn'
doubt before they would convict OF murder
I'm The FIRST degree Malice aioreihoUEht
Includes express malice. therefore unnec
cgsary n ropca, the definition In eubSc
miopt portiuus OF the charge. iNeln VI
! Sn.a 80 Texas criminal Reporter 32->
There ,s however. no room for tho CON
struotiun urged by appellant, that the ian
. ruaee used IN the second subdivision d
tits paragraph permits the Jury TO INA
verdict OF murder in the first degree upo
proof of Implied malice-as II is elaar IN
I words so XII" as they are uscd rotate an
70 refer hncli to the condition OF MUD ut ~
A time Of the killing. ae Wen AK the iho'u
used.
The second subdivision of this pafsirap
, says "Or II the said defendant hid VIZ
w malice Aln1filuuEui NJ WI 49,
purt by citle- one or all the means "toV
8 enumerated you will find defendant gun
al murder In the first degree Appcllnl
insists that the term $50 XIV rel"Fs VIZ
B to tho means. that is to fracture oil w
skull. tying The handkerchief around le
y mock. rubmcrglng her body IN me W''N'
80 ns 10 effect her death by drowning al,
. suffoc,fion. aud that Il does not refer I
! ,l,o cenditon Of dotcndnurs miud At IN
N limo "a. formed the design to XII Jus
how this construction can no inheritance
I am unable 10 see. ns tho means nm ~
, condition at The mind are ''niheH ~ W
~ | ftet subdivision of this pRraSrhph ~
,hcroforc clear that tho term 80 iill, r.
. lafes nnd rolois back 90 botd th9 'ondil 10
" ~ he mind ana means usel IN cfectln
the Killing.
=. .. objection IS made 10 the last svf
- division of pRrt of the charge WIN
reads an follows: "pu the facts ana en-
70 cunstaucea In the case show auch rec :
:. Iesa disregard OF human No 81 pecossartl
includes the formed dcsign against lhe w
of The person slain. II they 40. tho H'i
mn If IL amounts 20 murd7G would !
~ upon express malice .,, r.
" IA ia objected that tl's pnragtapl pr
sents a phase of crlmnnl hoinielne an
=, murder IN the frat degree, "hlfh hpeA h'
4. arise out OF the facts IN eV'Aenl'. NPpu
Iant lnelsis that this oherHo ~ pnlF W
40 nifcable when the murdesous sFahps d
a aimed at mankind In gehotM Ahu '"h ,,
+ one or more. concedc thi. thls !"
lnstratiye Of one Of the eapsei that Nou
Ia raD for the charge In lua1'lQn' but IL
~ no moans furnishes the onlf and eSeluFl,'
n fect or reason that would eau for u
~, rhargo 70 question. Appellant eoherp,
MAJ II a pprty were TO shoot into CROW
N OF noeol- while cntertaning no "po'Ii
n malice against the persons slain Fet "
h nci would show such reeklgas dl.IHHsl
N q, human Ito that Il would he gatfce
TO 10 show express malice. II t'ls be t,u
/. ne IN Killing whore one Of crown
r linod under circumstances OF rnen wn I, ',
o. malignity. why would II not be true u y
"a "n,,rr crowd We're Flsin7 Tho facts ~ ~
lr eose chow that he Killed HIS wife ana y
x children. the only inmates Of tho nov nov,
a heside hinaelf Their bodies were ioul
ei nc,oestoA In the cistcrn tightly honI
bnnd foot and neck the binding OF =
IS neck being sufficient TO have cauI n,o ns "a.
n. in addition their skulls appear 10 navc po
co nr,ehed or broken hy sonlo blunt instr
p ,nsnt. These circumstances OF enormlt