Court of Criminal Appeals of Texas, 1893

Utzman v. State

Court of Criminal Appeals of Texas · Decided November 18, 1893 · Simkins

24 S.W. 412; 32 Tex. Crim. 426; 1893 Tex. Crim. App. LEXIS 303 (South Western Reporter)

Counsel

Jenkins McCartney and A.S. Fisher, for appellant. — 1. The court erred in not sustaining the defendant's objection to the Hon. J.O. Woodward presiding as judge over the trial of this cause, because of his disqualification by reason of his having been counsel in this case Prior to the time of the trial, in this, viz., that at the time the homicide was committed, at the time of the examining trial by the justice of the peace of the defendant for said homicide, at the time of the convening of the District Court of Brown County, at the time of the examination of the matter by the grand jury, and the presentation of the indictment by the grand jury into open court, the said Hon. J.O. Woodward was the district attorney of the Thirty-fifth Judicial District, including the county of Brown. Const., art. 5, sec. 11; Rev. Stats., art. 1090; Code Crim Proc., art. 569; Johnson v. The State, 16 S.W. Rep., 418; The State v. Burke, 18 S.W. Rep., 662; Abrams v. The State, 31 Tex.Crim. Rep.; Bashford v. The State, 24 Mich. 244 . 2. The previous insults to appellant's wife were admissible upon the issue of the degree of homicide, to show that the threats on the part of appellant, proven by the State, were made on account of said insults, and not on account of a business difficulty. 3. Any evidence that would show that appellant had reasonable cause to be excited, troubled of mind, or in any wise mentally distracted, as to render it improbable that in perpetrating the homicide he acted with a cool, sedate, and deliberate mind, is admissible in a trial for murder. The court erred in sustaining the objections of the State to the testimony of William Hester, offered by defense, as shown by bill of exceptions. 4. To ascertain the state of the mind at a particular period, one may inquire into its condition before in relation to the particular subject. Penal Code, art. 39; Webb v. The State, 5 Texas Cr. App., 608, 609; Warren v. The State, 9 Texas Cr. App., 633. 5. The court erred in omitting to charge the jury upon murder in the second degree, in this: There being evidence of former grudges, antecedent menaces, and other circumstances going to show a feeling of hostility on the part of Utzman toward Thurmond prior to the time of the insulting conduct of Thurmond towards Utzman's wife about three weeks before the day of the homicide, and there being evidence that the new provocation was communicated to Utzman on the day of and a few hours before the killing, by Giles Livingston, which new provocation may or may not have aroused in the mind of Utzman such a passion as to render his mind incapable of that cool, sedate, and deliberate condition necessary to make the killing upon express malice, yet not sufficient to reduce the homicide to manslaughter, and this condition of the mind being a question of fact for the jury, the court ought to have instructed the jury more fully upon malice, and to have charged the jury upon murder in the second degree. Where the insult is of such a nature that the mind can not dwell calmly on it, and it is thus rendered doubtful if the killing was with a cool and sedate mind, the law of murder in the second degree should be given in charge to the jury. Ex Parte Jones, 31 Tex.Crim. Rep.[ 31 Tex. Crim. 422 ]; Burkhart v. The State, 18 Texas Cr. App., 621; Hill v. The State, 5 Texas Cr. App., 8; Eanes v. The State, 10 Texas Cr. App., 447, 448; Miles v. The State, 15 Texas Cr. App., 170. R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

*430 SIMKINS, Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment for life.

1. We do not think that the district judge was disqualified from sitting in this case. It is true he was district attorney at the time the homicide was committed, but being elected district judge at the November election,, and to avoid disqualifying himself, he declined to attend the sittings of the grand jury, and had the district attorney elect appointed by the court, who entered on the discharge of such duties on the opening of the court on the 5th of December, and prepared the indictment in this case, which was presented on the 9th of December. Two days after the opening of the court, the district attorney forwarded his resignation to Austin.

It thus appears, that in the case at bar, the Hon. J. O. Woodward, though in office as district attorney when the offense was committed, had nothing to do with the prosecution of said case, either in examining the witnesses or preparing complaint or indictment, and resigned his position before an indictment was presented.

Article 31, Code of Criminal Procedure, declares, that a district attorney, after his term of office expires, shall not be counsel against the" State in a case in which he appeared for the State, and to the same effect is article 41, Code of Criminal Procedure. This may be taken as a legislative construction of the constitutional clause disqualifying a judge, “ where he shall have been of counsel in the case.” Const., art. 5, sec. 11.

2. We think the court erred in refusing to permit Mrs. Utzman to testify as to the improj>er advances made by Thurmond two years previous to homicide, and William Hester’s statement of appellant’s declarations to him. The State was permitted to introduce proof of threats by appellant, extending back for two years prior to the homicide, and to show that the reason given was a business disagreement. To meet this strongly inculpatory evidence, appellant sought to prove the true cause was the insult offered to his wife, and not a business misunderstanding, and that he had yielded to the tears and entreaties of his wife in not attacking deceased at once. That when he heard of the fresh insult, on the evening of the homicide, he became so aroused that he determined to kill Thurmond on sight, and went out to meet and kill him. Such was the theory of the defense offered in this case—and he had a right to prove it by his witnesses, however improbable it might appear to the court. For if there was in fact a fresh provocation given, it was a question for the jury whether the design to kill was to be attributed to that or some previous grudge; and if the design to kill was formed in consequence of the fresh provocation, in a mind incapable of cool reflection, it might not be greater than murder in the second degree. Of course, if the jury believed that there was no fresh provocation, or that the homicide was deliberately and coolly consummated, it would be murder in the first degree.

3. For the reasons above stated, the court erred in not submitting to *431 the jury a charge on murder in the second degree. Let us concede that the evidence conclusively demonstrates the guilt of appellant, still when the court refused to charge on murder in the second degree, he excluded the entire defense from the consideration of the jury, and thereby passed upon its weight.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.