Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 357
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1875.] AUSTIN V. THE STATE. 357
Opinion of the Court.
and the file-mark of the clerk, with his signature, would not
raise the presumption that the charge had been used on the
trial of that party, and much less would it not be presumed that
such party was convicted of murder, and that the jury were
influenced thereby in making up their verdict, to the prejudice
of appellant. If the charge was applicable to appellant, there
is no apparent reason why he should object to the use which
may have been' made of it on the trial of some other party, if
true in fact.
Third. Because the charge of the court was calculated to
mislead the jury in not properly defining the distinction
between murder in the second degree and manslaughter, and
because the charge upon manslaughter did not have sufficient
reference to the case before the jury.
There is much in the charge, consisting of passages copied
from the Criminal Code, having no direct relation to the facts
in proof, which might well have been omitted; but believing
that the law of the case was charged with sufficient distinctness
to enable the jury to arrive at a proper conclusion on the facts,
the superfluous charges could not have misled the jury to the
injury of the defendant. The charge was as favorable to the
defendant as he had any right to expect from the evidence.
The objection that the charge does not draw a distinction
between murder in the first and second degrees and manslaughter,
if well founded as to the degrees in murder, could
not injure the defendant, as he was not found guilty of murder
in the first degree. But the charge defines murder in the first
and second degrees, and also defines manslaughter; and the
objection that it was calculated to mislead the jury in not
defining the distinction between murder and manslaughter, is
believed to be untenable.
The fifth ground of the motion for a new trial is, that the
verdict of the jury was the result of prejudice, caused by inproper
statements of one of the jurors to his fellow-jurors during
It appears from the affidavit of the juror Hopson, that after
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/365/: accessed January 21, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .