Harper v. State

<p>1. —Murder—Infanticide—Charge of Court — Requested Charges — Defensive Theories.</p> <p>Where, upon trial oí murder, charging defendant with killing his illegitimate child, after the court had charged in a general way on the facts in evidence, the defendant requested a charge that the court instruct the jury that if the death of the child was from suffocation en route between Sabinal and Utopia, to acquit; and in mother special charge, that if without any knowledge or participation on defendant’s part there was something done to the child before it was put in his possession, which was calculated to or did cause the death of the child, to acquit the defendant, even though the child died while it was in his car, all of which the court refused; held: that the case being one of circumstantial evidence, the said requested charges should have been given.</p> <p>2. —Same—Negligent Homicide — Charge of Court — Requested Charge.</p> <p>Where, upon trial of murder, charging the defendant with killing his own child, the facts raised the issue, by way of circumstantial evidence, of negligent homicide, and the defendant in a timely and proper manner submitted a requested charge thereon, which was refused, the same was reversible error.</p> <p>3. —Same—Accomplice—Charge of Court — Requested Charge.</p> <p>Under Article 801, C. C. P., forbidding conviction upon the uncorroborated testimony of an accomplice under the facts of the instant case, the court committed reversible error in not submitted a charge on accomplice testimony, with reference to one of the State’s witnesses, as requested.</p> <p>4. —Same—Accomplice—Rule Stated — Principal—Accessory.</p> <p>An accomplice witness is a person who either as principal, accomplice or accessory is connected with a crime hy an unlawful act, or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the crime. Following Phillips v. State, 17 Texas Crim. App., 169, and other cases.</p> <p>5. —Same—Rehearing—Affirmative Charge — Rule Stated — Requested Charge.</p> <p>Where the State, in its motion for rehearing, insisted that the court’s main charge was sufficient, held, that this court has often asserted the right of the accused to an affirmative presentation of his defensive theory raised by the evidence, and that a mere negative presentation of such theory in connection with the affirmative charge would not suffice.</p> <p>6. —Same—Malice—Affirmative Evidence — State’s Witness.</p> <p>This court further holds that the testimony of a State’s witness relative to a statement made by defendant which is denied by the latter is not sufficient affirmative evidence establishing the fact of malice on part of defendant, to remove the issue of malice vel non from that of being a matter of dispute on the trial.</p> <p>7. —Same—Accomplice—Charge of Court — Rehearing.</p> <p>In the condition of the record in the instant case, it was the duty of the trial court to submit a charge on accomplice testimony, and permit the jury to solve the disputed issues of fact.</p>