averment that the murder was committed with malice aforethought included an allegation that the murder was “voluntary”
How later courts described this case
- averment that the murder was committed with malice aforethought included an allegation that the murder was “voluntary”
Written by the judges who cited it.
The opinion
MORRISON, Judge
(concurring).
I concur with the result reached by the majority, but cannot agree with the blanket statement that “The state is not required to produce for inspection of the accused the testimony of witnesses before the grand jury.”
In the original opinion of the majority in Bryant, supra, the rule was accepted that where a witness had refreshed his memory from his testimony before the grand jury, the accused was entitled to examine such testimony for the purpose of impeachment.
In the relatively recent case of Bradford v. State, 170 Tex.Cr.R. 530 , 342 S.W.2d 319 , the Court, speaking through the author of the majority opinion herein, recognized that an accused had the right to lay a predicate to impeach a witness by proof that he had testified differently before the grand jury.
For this reason I concur in the affirmance of the conviction, but do not agree to the paragraph referred to in the majority opinion.