
    LUCAS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1913.
    Rehearing Denied April 16, 1913.)
    1. Homicide (§ 268) — Murder—Manner op Committing Offense — Evidence — Sufficiency.
    Where accused assaulted decedent several times during the night of the killing, and at one time threw a water pitcher at her, and decedent’s body was badly bruised, though no one was present when she was slain, the court properly submitted to the jury the issue whether accused killed her by beating and bruising her with an unknown weapon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.]
    2. Ceiminal Law (§ 1091) — Questions Reviewable — Bill of Exceptions.
    A bill of exceptions complaining of the “refusal to charge Pen. Code 1911, art. 41, relating to intoxication as a defense, as the evidence raised the issue,’’ is too general to be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, .2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 814) — Intoxication-Evidence — Instruction. '
    Where accused did not claim that he was insane from the recent voluntary use of liquor, and the evidence showed that he knew what he was doing, 'the refusal to charge Pen. Code 1911, art. 41, relating to intoxication as a defense, was not erroneous, though accused was intoxicated at the time of the offense, since mere intoxication from recent use of intoxicating liquors does not of itself excuse crime nor mitigate the degree thereof, but temporary insanity, produced by the use of liquor, is evi-' dence which may be used in all cases in mitigation of the penalty and in murder to determine the degree.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Criminal Law (§§ 1092, 1099) — Statement of Facts — Bill of Exceptions— Time of Filing.
    The statement of facts or bill of exceptions, based on the denial of a new trial on the ground of misconduct of the jury, must be filed during the term to authorize the court on appeal to consider the same.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, ¡¿866-2880, 2919; Dee. Dig. §§ 1092, 1099.]
    5. Homicide (§ 228) — Corpus Delicti — Evidence.
    In a prosecution for murder, evidence held sufficient to establish the corpus delicti.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. § 228.]
    6. Homicide (§ 254) — Murder in the Second Degree — Evidence.
    Evidence held to support a conviction of murder in the second degree.
    [Ed. Note. — For o.ther cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Sam Lucas was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Lattimore, Cummings, Doyle & Bouldin, and B. D. Shropshire, all of Ft. Worth, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cates eee same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On December 22, 1911, appellant was indicted by the grand jury of Tarrant county for the murder of Maude Tatum on December 4, 1911. He was convicted of murder in the second degree, and his penalty fixed at 35 years’ confinement in the penitentiary.

There were five counts in the indictment; the court submitted but three of them. One of these charged, besides the other necessary averments, that he murdered Maude Tatum by striking, wounding, and bruising her with his fists, from the effects of which she instantly died; another that he murdered her by beating, wounding, and bruising her with a weapon, the name, character, and description of which is unknown to the grand jury, from the effects of which she instantly died; the other that he murdered her by choking and strangling her, from the effects of which she instantly died. The record is somewhat voluminous, but it will be necessary to give only a brief summary of the evidence in order to discuss and decide the questions raised.

Deceased, Maude Tatum, was a prostitute. Appellant was a married man. They both lived in Ft. Worth. Appellant, at the time of the death of the woman, and for some time prior thereto, had “kept” her. She had a room over a saloon, and appellant frequently stayed there at night with her. The saloon keeper, Harry Hamilton, and his wife also occupied a room over the same saloon. They knew of the relations between appellant and deceased, and knew that he kept her there. Soon after noon on December 4, 1911, these four persons went to the country in a two-seated hack, carrying with them a considerable quantity of beer and whisky. They were all apparently friendly during the evening. They drank the beer and whis-ky during the evening, and returned to Ft. Worth just about or before night and went to two or three different saloons where they drank more or less before returning to their rooms. The two women perhaps drank more than the men. Anyway, they all got more or less drunk. The two men took the women in the hack to the saloon where their rooms were; the women getting out and going up to their rooms, the men taking the hack to the stable, and then returning to this saloon over which the women were. Both of them took several drinks before returning. The two men got back to Hamilton’s saloon, where the women were, about 8 o’clock or before. Appellant went up into the deceased’s room; the other woman having gone to hers. Very soon afterwards, Hamilton, who remained downstairs in his saloon, heard appellant slapping or beating the deceased up in her room. He went up there and interfered. Appellant was slapping her in the face with his hands, using considerable force. Hamilton interfered and got him to stop beating the woman at that time. When Hamilton went up and interfered with appellant when he was slapping the woman, appellant said to him that she was his woman and he could whip her if he wanted to. When Hamilton interfered and started to pull appellant out of the room at this time, appellant said something about slapping him too. Hamilton then left and went back into his saloon. About 11 o’clock the woman came down from the room and went out in town somewhere. Appellant remained there, it seems, in bed. The evidence shows that appellant was then drunk, but does not show that he drank any more after getting to deceased’s 'room about 8 o’clock. The woman returned to Hamilton’s saloon from out of town somewhere about 12 o’clock and went up to her room. Appellant was up there in her bed. About 2 o’clock Hamilton found her at the foot of the stairs too drunk to go up. He called help and took her up to her room and laid her on her bed. Appellant then got up and sat on the edge of the bed. Appellant then commenced to beat her again in the face, slapping her in the face, while she was on the bed flat on her back too drunk to do anything. Hamilton, the witness, again interfered and tried to stop him, and finally did get him to stop. During this time appellant took the water pitcher off the washstand and threw it at her head, but, because of the interference of the witness and warding off the lick, he missed her. She was then so drunk she could not get out of bed, and was in an unconscious condition. When Hamilton, the witness, and another, who was then with him, undertook to prevent appellant from beating up the woman again, he said, “I will kill that blond-headed whore if I want tothat she was his woman, and he could kill her if he wanted to. Finally Hamilton stopped him and he agreed to behave himself and to go to bed.

The witness Hamilton, it seems, did' not go upstairs to go to bed with his wife until about 2 o’clock that night. In order to do so he had to pass Maude Tatum’s door, and he then saw her and appellant in her room. Later he saw appellant go out of the woman’s room, cover her up, put out the lights, and shut the door. In covering the woman up with the bed covers he spread it up over her head. Hamilton asked him where he was going, and he said he was not going to sleep with that blond-headed bitch that night; that she was drunk, and he was going home, and he went downstairs and left. It seems that no one saw the woman any more from 2 o’clock after appellant went out of her room, as just stated, until about 8 o’clock the next morning. There is no evidence or intimation whatever that any one else other than appellant was in her room at all/ that night other than the witness Hamilton and the party who went with him up there at the time they last took her up the steps, and that they only stayed there a short time after appellant began to beat her up and threw the pitcher at her until they left the room. The next morning Hamilton and his wife found the woman dead. Blood was all over the pillow; it was saturated with it; and the blood had run into and entirely through the mattress. Her face was black and blue; she was lying with her face down; and a large pool of blood was about her face. There were marks on both sides of her throat; there was a bruise across the forehead and her lips, and black marks around her throat and around her neck, and both eyes were black, and marks on both sides of her throat. The body of the dead woman was removed to an undertaker’s. She was washed, dressed, and her body embalmed. One of the doctors who saw her there testified that her whole face looked like it had been pounded. Another one of the witnesses, who described her condition soon after she was found dead, said her face was bruised, lips swollen, and eyes swollen ; in fact, her entire face was swollen very badly; there were bruises on her neck and her breast around her. The end of the pillow slip was saturated in blood, and the bed had spots of blood all in it.

Appellant complains that the court erred in overruling his motion for continuance. His bill on this subject is very meager. Taking the motion, the bill, and the record, it clearly shows such a lack of diligence on his part to procure the attendance of the claimed absent witnesses that the court did not err in overruling it. Each count of the indictment submitted was amply sufficient, and the court did not err in overruling appellant’s motion to quash it.

The court did not err in submitting that count in the indictment charging that appellant killed deceased by beating and bruising her with a weapon, the name, character, and description of which was to the grand jury unknown, on the claimed ground that there was no evidence to justify the sub; mitting of any such question. The condition of the deceased when she was found dead the next morning, and the fact that appellant, the last time he was seen to have assaulted her, threw a water pitcher at her, and the other facts and circumstances of the case, did authorize the court to submit this count in the indictment to the jury, and the court did not err in so doing.

Another contention of appellant by his motion for new trial is in this language: “Third. Because the court committed fundamental error in failing to charge article 41 of the Penal Code in regard to intoxication of the defendant, as the evidence clearly raised this! issue, and the court should have given this law in charge to the jury.” This is the entire complaint in the motion for new trial. Appellant requested no charge on the subject. After the adjournment of the court, there appears in. the record a bill of exceptions to the refusal of the court to charge this article 41 of the Code, but it is just about as general as this ground of the motion for new trial is. No such bill appears to have been taken at the time of the trial, and no bill was at any time taken; merely this bill was taken and allowed after the adjournment of the court. This is entirely too general to be considered by this court. Byrd v. State, 151 S. W. 1068, and cases there cited.

But, if we should consider this, the record does not show that appellant claimed that he v^as insane from the recent voluntary use of intoxicating liquors at all; the evidence does not raise the question at all; it shows that appellant was at himself all the time, knew what he was doing, and did beat up this woman repeatedly during the night, and in no way indicated or claimed that he was then insane from the recent use of intoxicating liquors or from any other 'cause. The sole fact that he was drunk did not raise the question, and did not require the court to charge on the subject. In the case of Ex parte Evers, 29 Tex. App. 563, 16 S. W. 344, soon after the enactment of this statute, this court, in a well-considered opinion, construed said statute, and, after reviewing the occasion for the enactment thereof and the purpose thereof, said: “A casual glance at the said statute manifests the intention of the Legislature to be that intoxication shall not ‘mitigate either the degree or the penalty of crime.’ It is also to be seen that, in cases of murder, ‘evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant for the purpose of determining the degree of murder of which the defendant may be found guilty.’

“Viewing the statute in the light of the previous decisions, the language employed therein, and the evident intention of the legislative mind to be gathered therefrom, we are of the opinion that the only construction that can be placed thereon is that, since the passage of that law, evidence of drunkenness alone will not'be admitted for the purpose of mitigating murder from the’ first to the second degree. It is manifest from the statute that in cases of murder the party accused stands before the law to be tried without reference to his mental or physical condition with reference to drunkenness if the in-tpxication be caused by the ‘voluntary recent use of ardent spirits,’ and such intoxication does not reach the stage of temporary insanity. This is not a novel' question in this court. This same question came up for decision in Olore’s Case, in which this court said: ‘We think it clear that the legislative intention was: First, that mere intoxication from recent use of ardent spirits should not of itself in any case excuse crime; second, that mere intoxication should neither mitigate the degree nor the penalty of crime; third, temporary insanity produced by such use of ardent spirits is evidence which may be used, in all cases in the mitigation of the penalty and also in murder, for the further purpose of determining the degree. Of itself intoxication is neither a justification, mitigation, nor excuse of any sort of crime. It must go to the extent of producing temporary insanity before it will be allowed to mitigate the penalty, and in murder before it can be considered in determining the degree. This is our understanding of the proper construction to be placed upon the language of the statute.’ Clore v. State, 26 Tex. App. 629, 630 [10 S. W. 244]. It will be observed that the statute has no reference to drunkenness other than voluntary; nor does it refer to insanity other than temporary and such only as is produced from such use of ‘ardent spirits.’ The construction herein placéd on this statute is believed to be in strict accord with the legislative will and intention, and the only construction that can be legitimately placed thereon. It is a fundamental principle that, in the construction óf a statute, the legislative intent, if' that intent can be ascertained, must govern. The design of all rules of construction of statutes is to furnish guides to assist in arriving at the intention of the Legislature. Willson’s Crim. Stats. § 17; Whitten v. State, 29 Tex. App. 504 [16 S. W. 296]. The statute before us hardly needs construction. Its language is plain and its purpose easy of access and lies on the surface of the terms employed. The mere fact of intoxication at the time of a homicide will not affect the crime nor the degree of murder in this state as the law now- stand's. Clore v. State, 26 Tex. App. 629, 630 [10 S. W. 242]; Willson’s Crim. Stats. § 92.” This construction of this statute has at all times been adhered to by this court. There is no need to cite the other cases, though there are many to the same effect.

The court at which this trial occurred convened on January 1, 1912, and adjourned for that term on March 31, 1912. On March 30th the court heard and overruled appellant’s motion for new trial. The order shows that the court heard evidence on the motion before acting on and overruling it. There appears in the record a bill of exceptions filed on May 14, 1912, some month and a half after the adjournment of court. In this bill is attempted to be given what was the testimony on hearing appellant’s motion for new trial, in which it is claimed that there was some misconduct of the jury. The court stated in this bill, in allowing it, that, after hearing the testimony, he came to the conclusion that the verdict was not reached by lot, and that the fact of the defendant not testifying was not discussed in the jury room by the jury prior to the verdict. It is the uniform holding of this court that the statement of facts, whether by bill or statement of facts or otherwise based on grounds in the' motion for new trial attacking the verdict for misconduct of the jury, must be filed during term time in order to authorize this court to consider it. This not having been done in this1 case, we could not be required to pass upon this question, but, even if we did, the bill, as qualified by the court would show no error. Knight v. State, 144 S. W. 980, and cases there cited.

Appellant contends that the evidence does not establish the corpus delicti. We think it fully does so. The condition of the body of the deceased when found dead the next morning after appellant left it at 2 o’clock the night before, with all the surrounding facts and circumstances, shows that the deceased was killed 'by violence to her person, and that appellant and no other killed her. There is no indication from the evidence, to our minds, that she committed suicide or attempted to commit suicide. The court fairly and substantially submitted this question to the jury, and they found against appellant on it.

The evidence satisfies us and fully authorized the jury to believe and find as it did that the assaults committed upon this woman by the appellant produced her death. No other theory has any support in the testimony.

No other question is raised requiring any discussion by us. We have carefully considered all of appellant’s complaints and the able brief of appellant, but find no reversible error.

The judgment is affirmed.  