Black, Jr. v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

On account of the insistence of appellant’s attorneys, and the gravity of the punishment, we have again reviewed not only the record, but have also carefully read all briefs filed in this case.

We recognize the strength of the contention relative to the indictment in which it is charged that the means of death employed by the appellant was a “shove from a cliff,” but remain of the conclusion that such is fully descriptive of the method by which the grand jury thought the death of the boy was caused, and a proper notification thereof to the accused. Mr. Webster says that a cliff is “a high, steep rock, a precipice.” Again he says a precipice “is a headlong steep, a very steep perpendicular or overhanging place, an abrupt declivity, a cliff.” It therefore appears that appellant is charged with encompassing the death of the deceased by shoving him off a very steep overhanging place. We think this is as far as the State should be required to go in describing the manner that appellant caused the death of the deceased. That the shoving caused the body to fall and be dashed to pieces on the rocks below was but a necessary concomitant of the violence that was initiated by the push, and we think it was no more necessary to allege the different stages that took this boy’s life than it would have been to allege the crushing of the skull, the exposure of the brain, the final effect thereof on the heart, and the eventual disintegration of the life force. The push over the cliff was the active agency that eventuated in the destruction of life, and the sequelae that followed such push, were but the natural and probable consequences of such act. We think the indictment sufficient.

Complaint is again made on the ground that the body of this crime is only established by means of the confession alone, and therefore that the State has failed to make out a proper case herein. The Kugadt case, 38 Texas Crim. Rep. 681 , is the leading case on this proposition, and Judge Hurt went into this matter exhaustively, and therein lays down the doctrine that although an extrajudicial confession alone is not sufficient to establish the corpus delicti, such confession can be used in aid of its establishment, and if there be extrinsic corroborative circumstances as will, taken in connection with the confession,

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produce conviction in the minds of the jury, such will be sufficient; and such extrinsic evidence need not be conclusive in its character. Also see Jackson v. State, 16 S. W. Rep. 247 .

That the deceased was Marvin Dale Noblitt there can be no doubt; that he met his death by violence can not be denied, such violence being either accidental or intentional, leaving to be established by proof but one further fact, and that is, did he accidentally fall, or was he pushed from this cliff? We find the appellant interested in obtaining a boy upon whose life he could fasten an insurance policy, payable, in the event of death, to the appellant; we find him in final possession of the boy, and an executed insurance contract, seeking a place where an intentional death for the boy could be provided, and a contention, at least probable, could be made relative to such death being accidental; we find his inquiries relative to certain localities, at which localities such an accidental death could be made to seem probable; we find him in the place where such an end was made of the boy, according to his testimony given on the trial; and we find him present at the actual scene as the boy plunged to his death; we find his vague and contradictory statements, many of them untrue, made just after the tragedy; his unseemly haste to dispose of the broken body, and an effort to collect the reward for this untimely death, — all of which are strong circumstances going to corroborate the statement made in the confession, that he shoved or pushed him off the cliff, and caused his body to fall on the rocks below. We think the criminal agency and connection of the appellant with the causing this boy to fall off this cliff is satisfactorily shown by such circumstances, aided as they are by his confession.

Appellant again complains of the court’s charge on insanity, and also because of the jury’s finding that appellant was sane. The charge on insanity is rather lengthy, and possibly more favorable to the appellant than it was entitled to be, nevertheless it embodied the basic principles laid down by our law, and finally was bottomed on the appellant’s ability to know the nature and consequences of his act, and the distinction between the right and the wrong thereof. Unquestionably there was testimony upon which the jury could have found the appellant to have been weak-willed, moody at times, with fanciful and impractical ideas, with a historical background of a probable diseased heritage, if such there be, but never was his defense able to rise to the dignity of an inability to distinguish between the right and the wrong of the contemplated act; at

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no time did his own testimony rise any higher than the fact of his abnormalities, not sub-normalities. It was shown that he was educated in letters as well as skilled in mechanics; that he had been the recipient of society’s bounty in training the mind and body for a useful life, which training but served, if the State’s, case is to be believed, in causing him to depart from the standards of conduct laid down by such society, and to mold his life away from the normal standard fixed for law-abiding members thereof. Such failure upon the part of this appellant may have been the cause of this extreme penalty, or again the long preparation, the deliberation, and the circumstances surrounding the tragedy may have caused the jury to have demanded from him a return on the larger talents rather than of the one talent wrapped in a napkin and buried in the ground.

It is worthy of note that appellant’s tendencies toward insanity ' alone were testified to, his testimony never rising to the dignity of denominating him as an insane person without the knowledge of right and wrong. It is true that the offense proven before the jury may have evidenced a crime of peculiar horror, and an ingenuity that would tax the mental capacity of a normal person, but all our observation and information teach us. that crime itself is not normal,' — nor the act of a normal person. It takes either sub-normality or abnormality to foster criminal ideas and bring them to their fruition, and neither of such characteristics necessarily fall within the required measure in order to denominate the subject thereof an insane person. The State’s witnesses found the appellant to be possessed of mental faculties that show him to be sane under the law, and the appellant’s own testimony on the stand, evidently had much to do with the jury’s final decision that he knew it was wrong to take a human life.

We remain fixed in the views expressed in our original opinion herein, and overrule this motion.