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Jury charge help

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August 22, 2006, 16:17
Jury charge help
the manner an means in the indictment read "by cutting her throat with a razor blade knife."

My doctor claims it is a neck not a throat.

All lay witnesses and officers refer to the area as a throat.

Does anyone have knowledge of a jury instruction that all terms are to be given their lay meanings unless a specific definition is provided?

If not does anyone have a suggested wording for such a request?

Show time is tomorrow morning!
August 22, 2006, 18:05
According to your doctor, is the throat a medical term? I know of the windpipe and the esophagus - maybe together they are the throat. If the name does not have a scientific meaning, you are probably okay - defendant has adequate notice, the other witnesses say throat, etc.

This does get into the finger/hand, hand/fist, striking/punching area. Once had a boss try a case that involved "pushing [the victim] through a door" which led to an almost metaphysical discussion about whether her skin pushing through the screen door (she had marks) was enough to prove the act alleged.

Mostly, the defense will have better luck with the judge than a jury - I do not think they would get hung up on that.
August 22, 2006, 22:44
"Dr. Analretent, is 'neck' a term of medical art?"

"Among laymen, the terms 'neck' and 'throat' are interchangeable, aren't they?"
August 23, 2006, 08:21
Webster's says throat means: 1 a (1) : the part of the neck in front of the spinal column (2) : the passage through the neck to the stomach and lungs

It seems to me that you are using definition (1) and the doc is using (2).

Goverment Code 312.002 says:
Sec. 312.002. Meaning of Words
(a) Except as provided by Subsection (b), words shall be given their ordinary meaning.
(b) If a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art.

You should be entitled to an instruction that recites this rule. You could also try to offer the Webster's definition as a learned treatise.

You might also make the argument that the term "throat" as used in the phrase "cutting her throat" has a more particularized meaning in the context of that particular usage, i.e. "throat" is understood to mean neck when used that way.
August 23, 2006, 11:00
You stick your "neck" out when you take a risk.
Old west bad guys were hung from their "necks" until dead.


You threaten to wring you kid's "necks".

Your kids cut their own "throat" whenever they told the lie which led to the above mentioned threat to wring their "necks".

People choke b/c something gets stuck in their "throat".

You cut your "neck" shaving.

If you try to swap one for the other they don't really sound right to us in our slang filled language, but if they are swapped out - (ie) someone learning to speak english as a second language - I'm pretty sure everyone would know what was meant.
August 23, 2006, 11:23
Martin Peterson
I would also make every effort to explain to the jury that you need not prove the allegation exactly as alleged for them to vote guilty. E.g., Hancock, 363 S.W.2d 273; McCullough, 132 S.W.2d 112; Lee, 260 S.W. 194.
August 24, 2006, 16:11
If the defense is claiming that the offense of cutting the neck and cutting the throat are two different and distinct offenses, then can he claim that double jeopardy would apply to a re-indictment for cutting the neck of the same victim? I'm sure the point of some of the cases cited above is that it makes no sense to allow the defendant to make a notice-related defense when everybody knows what we're talking about and there is no true confusion.

Perhaps you might point out to the jury that a defendant with a real defense wouldn't spend so much time trying to convince the jury that "neck" and "throat" mean two different things.
August 24, 2006, 17:15
Abandon surplusage. A prosecutor need not allege what part of the body was cut, hit, shot or poisoned. Defendant is only entitled to notice of the manner or means of the injury.

So, an indictment need only say, "by cutting victim with a razor blade or unknown sharp object."

Abandon the language about the throat. And don't put such details in future pleadings. Stop making your job harder than it needs to be.

Some cites: See State v. Emanuel, 873 S.W.2d 108, 109-10 (Tex. App.--Dallas 1994, no pet.) (holding that indictment charging defendant with assault, by alleging that defendant recklessly caused bodily injury to another by striking victim with a belt, gave defendant sufficient notice of wrongful conduct charged); Cruz v. State, 838 S.W.2d 682, 684 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd) (holding State adequately alleged offense of aggravated assault where indictment alleged defendant "did then and there knowingly, intentionally and recklessly cause bodily injury to [victim], by striking her with his body and causing her to fall to the floor").

[This message was edited by John Bradley on 08-24-06 at .]
August 25, 2006, 11:28
Thanks for all your help.
We put language in the charge that said unless the words are given a definition, you are to use you common understanding of the terms.

The jury took 7 minutes to convict him.

The jury hung around for punishment because the defendant wisely decided to go to the judge.

The judge gave him 75 years.

The jury stated they would have given him life.

The defendant properly requested an appeal, a record, appeallate counsel, and then promptly and individually told each and every person to go F___ themselves. What a nice guy.
August 28, 2006, 08:24
Sounds like a good job on your part and a sensible jury to boot. Congratulations.
August 28, 2006, 08:39
Originally posted by James H.:
The defendant properly requested an appeal, a record, appeallate counsel, and then promptly and individually told each and every person to go F___ themselves. What a nice guy.

I hope that was on the record, or that a record was made after those comments.