# Doswell v. State

> Court of Criminal Appeals of Texas · November 12, 1952 · 158 Tex. Crim. 447

URL: https://www.frixlaw.com/law-library/cases/9681754

## Case

- **Full name:** Rebecca Doswell v. State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 12, 1952
- **Citations:** 158 Tex. Crim. 447; 256 S.W.2d 416; 1952 Tex. Crim. App. LEXIS 1413
- **Precedential status:** Published
- **Opinion:** On rehearing by Belcher
- **Judges:** Morrison, Belcher
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681754

## Opinion text

*454 ON MOTION FOR REHEARING.
BELCHER, Judge.
Appellant again presents as error the arguments of the prosecuting attorneys in several instances, and further urges error based upon the arguments collectively.. These contentions are set forth in an able brief and were pointedly and seriously presented on oral argument for rehearing.
We have re-examined each bill of exception relating thereto in the light of our prior decisions as to the requirements thereof and fail to find reversible error.
The appellant strenuously insists that this case is one of circumstantial evidence, and that the trial court erred in not responding to appellant’s exception to its failure to so charge the jury.
In reviewing the statement of facts, we find that appellant testified on the trial of her case. Her testimony reveals that she was present at the time of the homicide; that the pistol with which the act of homicide was committed was in her right hand at the time it was discharged. The evidence discloses that the discharge of the pistol and infliction of the fatal wound were simultaneous. Appellant stated that she and the deceased were the only persons in or touching the car at the time of the shooting, and she further said that the pistol was accidentally discharged at the time deceased was shot.
The trial proceeded throughout without dispute that deceased died of the pistol wound.
The court adequately submitted to the jury the question of the accidental discharge of the pistol at the time and we find no objection to the giving of same in the record. The record does not reflect that the defense was made that deceased was shot with the pistol when it was discharged in appellant’s hand.
The participation of the appellant in the discharge of the pistol is shown by her admission to persons who testified on the trial and her own testimony. The testimony of appellant shows that she was handling the pistol at the time of its discharge and that it was immediately within her possession.
*455 In McClure v. State, 100 Tex. Cr. R. 545 , 272 S.W. 157, 161 (7), Morrow, P.J., stated as follows:
“* * * The law is well established that, if there be direct evidence in a murder case that the fatal shot was fired by the accused, a charge on circumstantial evidence is not required, though his intent in firing the shot be a controverted issue to be solved by an inference of the surrounding facts.”
Further, when a homicide is proved by direct evidence and. all that remains to be found is the intent which accompanied the act, which may be determined from the circumstances surrounding the act, then a charge on circumstantial evidence is not necessary. Wesley v. State, 149 Tex. Cr. R. 650 , 198 S. W. 2d 103, 105 (4-5) ; Branch’s Ann. Tex. P. C., Sec. 1874, and cases there cited; Martinez v. State, 140 Tex. Cr. R. 159 , 140 S.W. 2d 187, 189 .
We think that the rule stated applies where the issue is whether the accused voluntarily fired the pistol, as well as to her intent in doing so.
There was direct evidence in the record to show the commission of the homicide by appellant, therefore a charge on circumstantial evidence was not required.
Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.
Opinion approved by the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681754. Public record. Not legal advice.