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Bastrop County, TX |
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SUPREME COURT RECORDS PAGE
10
File contributed by Lisa Lach and
proofed/formated by Dena Stripling Appeal from district court, Bastrop county;
Lafayette Kirk, Judge. Aleck Brown was convicted of murder in the first
degree, and appeals. Affirmed. On a trial for murder, evidence that the husband
of deceased told defendant that he (defendant) had killed deceased, and that
defendant made no reply, was competent. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, the affidavit alleged
that the blood stains were from a squirrel which he had dressed on the morning preceding
the homicide. Defendant's daughter testified that a squirrel had been given her on that
morning, but that it was already dressed, and this testimony was corroborated by the person
who gave it to her. Held, that the continuance was properly refused. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, and the murder occurred in
October, and the application was made in January following, no sufficient diligence was
shown to warrant the granting of a continuance. Where the allegations in a bill of exceptions
are contradicted by a statement of the court annexed to the bill, such statement will be held
to correctly present the matter in issue. Under Code Cr.Proc. art. 377 [Vernon's
Ann.C.C.P. art. 358], providing that any person, before the grand jury has been impaneled, may
challenge the array, or any person presented as grand juror, and in no other way shall
objections to the legality of the grand jury be heard, and that any person confined in jail
shall, on his request, be brought into court to make such challenge, the provision that such
person make such request is mandatory; and, unless he does make such request, he cannot
afterwards object that he was not allowed an opportunity to challenge the array. Defendant had, prior to the homicide, had
several quarrels with deceased, and on the night of the homicide was seen standing at her gate,
quarreling with her. Witness heard four blows struck, and heard deceased scream after
the first blow. Deceased's head was chopped to pieces by an ax, and defendant, when
arrested, had numerous blood stains on his clothes, which he accounted for by saying that it was
blood from a squirrel which he had dressed; but this was controverted by his daughter, who
testified that the squirrel had been given to her already dressed. Held sufficient to
support a conviction of murder in the first degree. The evidence not raising the issue of
manslaughter, a charge thereon need not be given. Under Vernon's Ann.St. Const. art. 4, § 8,
providing that the governor may convene the legislature on extraordinary occasions, and that
his proclamation shall state specially the purpose for which it is convened, and
article 3, § 40, providing that the legislature so convened shall not legislate on any other
subjects than those designated in the proclamation or presented to them by the
governor, he need not define subjects of legislation with precision; and a proclamation authorizing
the reapportionment of the judicial districts or the entire state, by implication, authorizes
all such legislation on that subject as may be deemed necessary by the legislature. The caption of an act creating a new judicial
district need not state the different counties constituting such district, nor that one of the
counties composing it was transferred from some adjoining district; the omission of such
statements therein not being in violation of Vernon's Ann.St. Const. art. 3, § 35, providing
that no bill shall contain more than one subject, which shall be expressed in its title. A verdict in civil, as well as in criminal,
cases, may be lawfully received and entered on Sunday. **596 The following is the statement of facts. *121 J. F. Nash, witness for the state, being
duly sworn, testified as follows: "I hold the position of marshal of the town of Bastrop. I
heard of the killing of Jane Wilkins, who was Oliver Wilkins' wife, on the night of October
15, 1892. It occurred in the town and county of Bastrop, in the state of Texas. It was some
time about ten o'clock when I heard of it. When I got there I found the body laying in the
yard, between the two doors on the south side of the house. It was lying on the face,
with the hands under it. There were two deep gashes in the head, and one in the shoulder.
There was an ax lying beside the body, and covered with blood. There was blood on the
ground around the body, and blood on the wall of the house near the body, as high as five feet
from the ground. There was also a bloody ax lying on the ground, near the body. Ben
Holiday lives in the southwest corner of the block on which the Wilkins house is situated.
Darcas Gage lives on the northeast corner, and the Wilkins house is on the northwest
corner. Ann Morrison and her husband, Frank Morrison, live across the street from Oliver
Wilkins,--directly north. I think the street is about fifteen feet wide, and Morrison's house
is some ten feet from the street. Oliver Wilkins' house faces south. It is about sixty or
seventy yards from deceased's house to Ben Holiday's. It is about seventy-five to one
hundred yards to John Kerr's from Oliver Wilkins' house. There *122 was some blood on a
top plank of Wilkins' yard fence, south of the gate, made by finger prints. The finger
prints, in blood, were about two inches below the top edge of the plank, and the plank
was broken. Aleck Brown, the defendant, was arrested some time in the summer before the
killing occurred, for disturbing the peace; and he pleaded guilty, and paid part of
his fine, and worked the rest out on the street. He was charged with disturbing the
peace." Cross- examined: "Oliver Wilkins, the husband of Jane Wilkins, the deceased, made
the complaint against Aleck Brown for disturbing the peace. The body of Jane Wilkins
was found on the south side of the house, a few feet from the door of the main room,
nearest the door of the east room. This east room is an old room, not used much. There was
nothing in it. The feet were directly under the eaves of the house. The head was directly
south, as though she had been standing with her back to the wall. I don't think it was over
five minutes after I heard of the killing until I got there. There were a good many there
when I got there. Aleck Brown, John Kerr, Ben Holiday, and Aunt Darcas Gage were there
when I got there. Aleck Brown went after Oliver Wilkins, the husband of the deceased. I
think he went after him of his own accord. When Oliver got there, I noticed him, and he
seemed very much excited. He went and got his gun, and went out in the garden. Aleck **597
Brown lives 200 yards or more from Wilkins' house,--a little west of south of Wilkins'
house. The blocks are divided into squares of three-acre tracts. Oliver Wilkins' house, where
deceased was killed, is in the northwest corner of one three-acre block, and Darcas
Gage's house is near the southeast corner of the same block, and about 45 yards distant.
Frank Morrison's house, where Ann Morrison lives, is on the block immediately north of Oliver
Wilkins'; and Ben Holiday's house is on the same block the Wilkins house is on, and
in the same southwest corner. Dally Nunn's house is on the same block with Frank
Morrison's house, and in the northeast corner of same. Kerr's house is a little south
of east from Wilkins' house, and between 75 and 100 yards distant. Aleck Brown's house is
a little west of south from Oliver Wilkins' house, and about 200 yards distant. In
going the most direct route from Oliver Wilkins' house to defendant's, you would pass by
the Ben Holiday house. In going from the Ben Holiday house to the Taylor house, in
the most direct route, you would pass by Oliver Wilkins' house. Maria Gage lives about
one-quarter of a mile from Ben Holiday's house,--a little east of north. These three-acre
blocks are surrounded by streets. Ben Holiday's house is the only one you would
necessarily pass in going from Oliver Wilkins' to defendant's by the most direct route.
Immediately north of defendant's house is an inclosed three-acre block, with no houses or
improvements on it." *123 The following is a correct plat of the
grounds and houses, and was introduced in evidence by the state: Darcas Gage, for the state, being sworn,
testified as follows: "I am the mother of Jane Wilkins, the
deceased. The first time I knew Jane was dead, Ann Morrison came to my house, and called me,
and said, 'I think one has killed or hurt Jane.' I went up there, and found her lying
on the ground, with her head cut open, and a bloody ax lying near her. I screamed, and
kept a- screaming. No one came, and I went back, and put on my clothes. When I came
back, John Kerr came. His nephew, Walter Wheeler, came with him, and shortly afterwards
Aleck Brown came, and he stooped over Jane, and said: 'Yes; sure enough, she is dead.'
Aleck said to John Kerr, 'Let's put her in the house.' Kerr said, 'No.' Aleck walked
off, put his elbows on the fence, and leaned his head on his hands. I said, 'Who
will go after Oliver Wilkins?' and Aleck said 'I'll go.' Before cotton-picking
time, Aleck and Jane had trouble, fussing and quarreling. Aleck was frequently at Oliver
Wilkins', both in the day and at night, while Oliver was absent, and no one at
home." Cross-examined, witness testified: "Ann Morris called me three times. I was asleep when
Ann called me. When Oliver came up, he said, 'There *124 is my poor wife.' After Ann
Morrison called me, I went right up, in my night linen. I put my hands on her head,
and I thought she said, 'Ma.' The body was still warm. I screamed, and kept hollowing,
'Some one has killed my poor child! I went back, and dressed. I don't think it took me
fifteen minutes. I went just as quick as I could. Jane Wilkins married Tobe Cook's
father the first year of freedom. Aleck Brown was then only a baby." Re-examined by
the state, Darcas Gage testified: "About four months before the death of deceased, the
defendant and deceased were at Oliver Wilkins' house, quarreling, and I went to them,
and tried to stop it, and defendant started off, and then stopped, and picked up a
big stick of wood, and threw at deceased, and hit the fence; and I said,--'Aleck, I am
going to make your pocket blue for that;' and he said, 'God damn you! I will make your
heart bleed in less than six months,' and then left. Oliver Wilkins' family consisted of
only himself and wife, and a little five or six year old boy, and no one lived at his
place except this family." J. F. Nash recalled for the state testified: He
arrested the defendant on this charge on the night of the murder. Very shortly after
witness "got to Wilkins', being shortly after ten o'clock, he had on no hat or coat or
overshirt, and only a clean undershirt on the upper portion of his body. The sleeves he
had on when arrested had some spots of blood on them at the time he was arrested. I
went that night to defendant's house, and found a white straw hat and a pair of pants
of defendant's, both of which had some spots of fresh blood on them; but I did not
notice the blood on the hat and pants of defendant until the next morning, but noticed it
on the shoes that night. The blood on the hat was a small spot on the under side of
the brim, and a large spot on the band, and there were large spots on his shoes. The
blood has faded away some, but I can see it on the hat and pants and shoes now. The
deceased had been struck three times in the head, and once in the shoulder, with the ax, or
some sharp, cutting instrument. The wounds were all deep ones, and the head was cut
to pieces, and had to be tied up for burial." Cross-examined, the witness J. F.
Nash testified: "The blood is plainer **598 now on the hat band than it is now on the shoes
and pants. When I first saw it, it was red, and looked like fresh blood. I could not
tell the difference between blood put on the clothes at 10 A. M. and 7 P. M." John Kerr, for the state, being sworn,
testified: "I live a little distance from the house of Jane Wilkins, the deceased. About ten
o'clock on the night Jane Wilkins was killed, I heard Aunt Darcas, the mother of
deceased, screaming. I ran up there. When I got there, there was no one there but Jane's
mother. The deceased was lying in a pool of blood, dead, and a bloody ax was lying near
her. Her head was cut all to pieces with the ax, and I joined the pieces of her head
together with my hands, and there was nothing holding together but a piece of skin. Aleck *125
Brown was the fourth man there. Darcas asked Aleck to go and get Oliver. When Oliver
got there, he walked around the yard, wringing his hands, and said to defendant,
'Aleck, you have killed my wife,' and defendant made no reply, and walked off. When
Aleck Brown came, he said, 'What's the matter?' It was ten o'clock, by my clock, when I
left home. When I got there, about three minutes afterwards, I heard Darcas
scream." Re-examined: "The defendant had no hat on his head there that night, and he was the
only person there I saw without a hat on his head. I was there the whole time
defendant was there that night, and he never inquired anything about who committed the
murder, or who was suspected with it." Oliver Wilkins, being sworn for the state,
testified: "I am the husband of Jane Wilkins, the deceased. I last saw her alive on October
15, 1892, about four o'clock in the afternoon. From sundown until Aleck Brown came
after me to tell me of my wife's death, I was at the white folks' gambling joint at the
Home saloon. John Majors, Warren Fleming, and Joe Sims, and others, were there. I
went at once to go to the market to borrow fifty cents, and at this time also
went to the negro joint, and was gone not over ten minutes. I went out only one other
time, to go to the saloon, a few feet from the white folks' joint, to get a drink
of whisky, and returned as soon as I got the drink." Cross-examined:
"When Aleck Brown came in, he said, 'Oliver, somebody has killed your wife with your own ax.'
I think I got to the house in about fifteen minutes before Aleck got there.
When I got there, I said, 'Ain't it a pity my poor wife is here, dead?' I got my
gun, but there was no load in it, and it wouldn't shoot, anyhow, for the breech
pin was out. I kept my ax under the house, with the handle lying straight with the
side of the house. You could not see it without stooping down." Re-examined:
"I was not at home any time that night between sundown and the time I was informed of
the death of my wife. I gave Mary Brown, daughter of defendant, a squirrel on the
day of the death of my wife. The squirrel was dressed and cleaned on the day I
gave it to her." George Davis, being sworn for the state,
testified: "I am sheriff of Bastrop county. I examined the hat and shoes and clothes
referred to by the witness J. F. Nash, and saw the spots of blood on them. I examined the
hat and shoes and pants the next morning after the murder. The blood was fresh,
red blood." H. N. Bell, being sworn for the state,
testified: "I examined the spots of blood on the hat and pants and shoes of the defendant on
the morning after the murder, and the blood was red and fresh." Pearson Hill, being sworn for the state,
testified: "A few minutes before nine o'clock on the night Jane Wilkins was killed, I met
Aleck Brown at Dally Nunn's corner, which is the northeast corner of the block north of
Oliver *126 Wilkins' house, I said: 'Hello, old boy! Where are you going?' He said,
'I am only walking around.' We talked a short time about the supper, and about the
folks passing up town, when I told him I must be going, and bid him good night."
Cross-examined: "He had a white straw hat in his hand when I met him. I think he had on an
old pair of rickety-looking brown jeans pants. Where I met him was northeast of
Oliver Wilkins', and Aleck lives southwest from Oliver's. Aleck said he believed
he wanted to go up town. I told him not to go up there; the negroes were fussing
in that joint, and some one had to go to hell out of that hole, and he had
better keep away. I said: 'I must be going. I promised my wife to be home early
tonight. If I don't go, I will have a fuss on my hands.' Aleck laughed, and said:
'Yes, that's so. We do sometimes get those on our hands when we go home late.' When I
bid him good night, Aleck went west, and I went east. Immediately after I left
defendant, and went about one hundred yards, and crossed the railroad, the town
clock struck nine. When I first saw defendant, he was coming from between two
seed houses on the railroad reservation near Dally Nunn's corner." Dally Nunn, being sworn for the state,
testified: "I live northeast from Oliver Wilkins' house. On the night Jane Wilkins was
killed, I heard Pearson Hill and Aleck Brown on the north side of my house,
talking. It was about nine o'clock. About an hour afterwards, I heard Aunt Darcas
scream." Ann Sims, being sworn for the state, testified:
"In the spring of 1892 I went to Aunt Jane Wilkins' house. Aleck Brown, the
defendant, was there, and she and Aleck were quarreling and fussing, and Aleck called
her a damned bitch. Aleck was cursing, and Jane was hollowing. At another time after
this, I was passing by Wilkins' house, and heard defendant and deceased quarreling, and
I heard the deceased say, 'I will not do it,' and the defendant then said to the
deceased that he would kill her. He said, 'Nigger, I will show you. I will kill
you.' This was at night, and there was no one there except defendant and deceased. I
have heard Aleck Brown curse Oliver Wilkins, too." Tishie Kerr, having been sworn for the state,
testified: "About 9:30 o'clock on the night that Jane Wilkins was killed, I **599
heard four or five licks struck, and heard Jane scream. The licks sounded like some one
cutting wood. There wasn't five seconds between the licks. I live at John Kerr's. The
licks sounded like they were at Wilkins' house, and I recognized deceased's voice, in a
scream, following immediately after I heard the first blow, and heard the scream only
one time. The voice was a scream, as if in distress." Ben Holiday, being sworn for the state,
testified: "I live south of Oliver Wilkins' about fifty or sixty yards. On the night of
October 15, 1892, I went to town at the first of dark, and came back in about twenty
minutes. *127 When I came back, Aleck Brown, the defendant, was talking with Jane
Wilkins, the deceased. He was standing on the outside, and she was on the inside, of
the yard fence of Oliver Wilkins' place. My little boys, who had gone up to the Taylor
House, got home about half an hour, or may be three- quarters of an hour, after I
got back from town. I live on the most direct route from defendant's house to Oliver
Wilkins', and in going to the Taylor House, by the most direct route, from my place,
you would have to pass Oliver Wilkins' place. Maria Gage lives about one-quarter of a
mile southeast from where I live; and, at the time of the death of Jane Wilkins, Maria
Gage owed me a dollar, which she promised to pay on that day, but did not pay on
that day. My house is very near the sidewalk, and on the night of the murder there
was a lamp burning with a full light until a few minutes before I heard Aunt Darcas
screaming, when she found her daughter dead. There is one door and one window of the
house on the west side of the room the lamp was in that night." Lloyd Holiday, being sworn for the state,
testified: "About two or three hours after dark on the night of the murder of Jane Wilkins,
I and my brother left to go to the Taylor House, and on our return came back by
Jane Wilkins' house. The defendant, Aleck Brown, was there by the fence, talking to
her. They said 'Yes' about something. I was gone about half an hour. She was inside of
the yard fence, and he was on the outside. They were near the gate, on the west
side of the house." Ann Morrison, being sworn for the state,
testified: "I live on the opposite side of the street from Oliver Wilkins'. The street is
about thirteen yards wide. Oliver's house is about ten feet from the street, on the
south side, and mine, about the same distance, on the north side. Oliver's house
fronts south, and mine east. On the night of the murder, at about eight o'clock, or after,
I saw Aleck Brown standing on the outside of Oliver's yard fence of Oliver's
house, at or near the northwest corner. Jane Wilkins, the deceased, was standing on the
inside, and they were talking to each other. They were close together, and one each
side of the fence. They were quarreling, I don't know what about. They stood there
quarreling for several minutes. I heard him say something about money, and I heard Jane say
she was through with him, and would have nothing more to do with him. She left, and
immediately went in the house, and defendant immediately opened the gate, and went
in, and left the gate open. He followed Jane immediately into the house. I heard some
noise in Jane's house. It sounded like some persons fussing and quarreling. This rumpus
was kept up several minutes, and I could not tell what was said by the persons
fussing and quarreling. I went out to my yard fence, and I could tell then that the
parties were outside, and south of the house, fussing and quarreling. I heard Jane say,
'You're a liar.' Then I heard the defendant, Aleck Brown, say something in *128
answer, but could not tell what it was. Then I heard about four licks struck, and heard
Jane scream after the first lick was struck, but heard her voice no more after I
heard the second blow. After I heard the blows, and heard Jane scream, I saw some one run
and jump over the fence right south of the gate, and run down by Ben Holiday's, in
the direction of his house. I heard a plank of the fence break as he got over
the fence. I have seen the defendant there frequently, both day and night,
while Oliver Wilkins was not at home. I heard her say, 'You're a liar.' Then
I heard him say something, and then she said, 'It's a lie,' and he said something
else, and she said again, 'You're a liar.' I went in the house while they
were standing at the fence. I stayed a little while, and when I came out I
could hear them in the house, talking, quarreling, and sounded like they
might be fighting, and I recognized it as Aleck's voice. They kept this up
until I went in the house again. I stayed a few minutes, and when I came out
they were out in the yard. I could hear them quarreling and talking in the
yard. I could not understand all the defendant said. He talked low, but I
could understand Jane. She called him a liar three times. I went back in my
house the third time. Not long after I went in, I heard the blows struck, and
the screaming of deceased; and then I heard some one run across the yard, and
saw him jump over the fence, and heard the fence break as he got over. I
could not tell how he was dressed. I then went in my house, and stayed about
half an hour, I think, and then I called Jane, but she did not answer. I then
went and called Aunt Darcas, her mother, and she came, and found Jane dead,
with her head split to pieces, with a bloody ax by her side. The defendant
and deceased had had quarrels before, and at one time he bit one of her
fingers nearly off. I have known the defendant, Aleck Brown, ever since he
was a baby. (And the witness points him out, and identifies him in open
court, before the jury, and says she is positive he is the man who was
engaged in the conversation and quarreling with the deceased on the night of
the murder.) I heard the conversation, and recognized his voice. This all
occurred in the town and county of Bastrop, in the state of Texas, on or
about October 15, 1892." Jo Sims, being sworn for the state, testified:
"I know where Oliver Wilkins was on the 15th of October, 1892, from six o'clock P. M.
until Aleck came to tell him of the death of his wife. He was in the **600 gambling house,
a few feet in the rear of the Home saloon from six o'clock P. M. on said day until
I left the gambling house. I left the saloon about 8 o'clock, and, when I returned,
Oliver was gone to the scene of the killing." Step Smith, being sworn for the state,
testified: "Oliver came to the gambling joint near the Home saloon six P. M. the night Jane
was killed, and never left there at all during the time until Aleck came after him,
except once to go into the saloon, a few feet distant, to get him a *129 drink. He went
to the saloon, got his drink, and immediately returned to the gambling house, and
remained there." Warren Fleming, being sworn for the state,
testified: "Oliver Wilkins was at the White joint in the rear of the Home saloon on the
night of the killing of Jane Wilkins, from a little after six o'clock until defendant came
after him. He left only one time during that time to go into the saloon, a few feet
distant, to get him a drink, and was gone five or ten minutes, --can't be certain,--and
returned and remained there until defendant came after him." John Majors, being sworn for the state,
testified: "Oliver Wilkins, on the night of the killing of Jane Wilkins, came to the joint in
the rear of the Home saloon, and stayed there from about six o'clock P. M. until the
defendant came and told him of the death of Jane Wilkins. He was gone only once during
said time, and then went into a saloon, a few feet away, to get a drink, and immediately
returned. Oliver was betting, and I was dealing. Oliver was gone after the drink
about five minutes,--not over ten minutes, if that." Cross- examined: "I was busy
with my game. I did not pay much attention to the time, but it did not seem to me more than
ten minutes. He had money when he came back, and went to betting on the game." Josh Gage, being sworn for the state, testified:
"On the night Jane Wilkins was killed, my mother sent me down to Ben Holiday's to tell
him, if he would come up to our house, she would pay him that dollar she owed him. When
I got nearly to Ben Holiday's house, I saw defendant, Aleck Brown, runing towards me
from the direction of Oliver Wilkins' house. He ran up in reach of me, and I saw it
was Aleck Brown. He sorter circled around a light made by a lamp in Ben Holiday's house,
as if trying to shun the light, and went towards his home in a sort of trot. I got
scared, and ran back towards the Macedonian Church, where my mother was. I didn't stop
running until I got to the Macedonian Church. Aleck was running fast until he passed me, and
after passing me he ran, in a sort of a trot, off in the direction of his home, near
there. He was in the street between Ben Holiday's house and Jane Wilkins' house, coming
from the direction of Jane Wilkins' house, when I first saw him; and I got scared so
badly when I saw Aleck running that I immediately turned, and ran back to my mother,
without seeing Ben Holiday. I am between fourteen and fifteen years of age, and
Maria Gage is my mother. I have known the defendant, Aleck Brown, all my life, and am
positively certain the man I saw running that night, as I have stated, was the
defendant, Aleck Brown. (And the witness points, and identifies the defendant, in court,
as the man he saw running, as testified by him.)" Cross-examined: "I have
talked about seeing Aleck that night with Uncle Oliver Wilkins. I didn't tell him what I was
going to say. I *130 don't know why I wasn't asked to testify at the examining trial.
I know Aleck Brown well, and one reason I got scared was because his shirt was
unbuttoned, and he ran up so close to me I could have put my hand on him. As soon as I
saw my mother, upon my return, I told her about my seeing Aleck Brown running, and
about my getting scared, and failing to deliver her message to Ben Holiday." Maria Gage, being sworn for the state,
testified: "I am the mother of Joseph Gage, and he is fourteen years old. I sent him to Ben
Holiday's on the night Jane was killed. Joseph left just after dark. He was gone about
one-quarter of an hour, and had been back about half an hour when we heard Aunt
Darcas screaming that Jane was killed. I was owing Ben Holiday one dollar, and had
promised to send it to him on that day, but a check for my money had been lost, so I could
not get my money that day; and I sent my son Josh to Ben Holiday's that night to tell
him I would get the money, and pay him the next day. It was about nine o'clock, I
suppose, when I started him to Ben H oliday's, and in about fifteen minutes he came
running back, and said that he did not see Ben Holiday; that when he got to Ben
Holiday's house he met Aleck Brown, the defendant, running by Holiday's house; and that
this frightened him so that he turned, and returned in a run, without seeing Ben
Holiday. About one-half an hour or more after Josh returned, and told me this, I heard
Darcas Gage screaming out that her child had been murdered. I live near Col. Jones'. It
is almost a mile from Col. Jones' to the place where Jane was killed." Here the state closed. Caddy Brown, being sworn for the defendant,
testified: "I am the wife of Aleck Brown, the defendant. We went to bed about half past
eight on the night Jane was killed. We went to sleep. I heard Aunt Darcas screaming,
which waked me up. Aleck was asleep beside me in the bed. I woke him up, and told him to
put on his clothes, and run on ahead of me. It was dark when he got up, and I don't know
what clothes he put on. We had supper late. It must have been eight o'clock or after. Aleck
might have been knocking about the lot while I was getting supper. I was busy, and
didn't pay any attention to him. When I got over to Oliver's, Aunt Darcas threw her arms
around me. She told Aleck to go after Oliver." Mary Brown, being sworn for the defendant,
testified: "I am the daughter of Aleck Brown. I was at Jane Wilkins' on October 15, 1892, and
left there about seven o'clock. Uncle Oliver was out hunting that morning, and gave us
a squirrel. **601 Papa cut it up, and salted it. I took two squirrel tails home with
me, and gave them to my little brothers to play with. The last I saw of them, they were
playing with them around the house." Cross-examined: "The squirrel was dressed
by Oliver Wilkins before he gave it to me, and he gave it to me before noon of that day, and I
took it in my hand over from Wilkins' house to defendant's." *131 George Kirk, being sworn for the state,
testified: "I took Aleck's sister to the supper that night." William Matthews, being duly sworn for the
defendant, testified: "On the night Jane Wilkins was killed, between seven and eight o clock, I
was going south, down the railroad track; and at the southeast corner of the block on
which Oliver Wilkins, Ben Holiday, and Darcas Gage live, I saw the defendant turn the corner
of the fence, coming from the direction of his residence, and going up north, in the
direction of Dally Nunn's corner." Dr. J. B. Camps, being sworn for the defendant,
testified: "I walked from the gambling joint where Oliver Wilkins was on the night Jane
Wilkins was killed to Oliver's residence. I took six minutes to walk there, and six
minutes to walk back from there, at a pretty rapid gait." Dyer Moore and McPhaul & Hood, for
appellant. *132 R. L. Henry, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of murder in the first
degree, and his punishment assessed at death. It is contended that the act of the special
session of the twenty-second legislature, organizing the twenty-first judicial district,
is unconstitutional, because the governor did not, in his proclamation convening said
legislature, designate this particular matter in said proclamation as a "subject"
for legislation. Article 4, § 8, Const., provides that "the governor may, on extraordinary
occasion, convene the legislature at the seat of government, or at a different place, in case
that should be in the possession of the public enemy, or in case of the prevalence of
disease thereat. His proclamation shall state specially the purpose for which the
legislature is convened." It is further provided by article 3, section 40, of said
section: "When the legislature shall be convened in special session, there shall be no
legislation upon any subject other than those *133 designated by the proclamation of the
governor calling such session, or presented to them by the governor, and no such
session shall be of longer duration than 30 days." The proclamation, among other
things, convened the legislature "to reapportion the state into congressional, senatorial,
judicial, and representative districts, and to provide for the election of officers
therein." The judicial districts mentioned in the proclamation were those presided over by the
district judges. A casual inspection of the proclamation renders this certain. That
the authority to reapportion or reorganize the judicial districts of the entire state
necessarily carried with it the power to reapportion any given number of such districts
is to our minds a self-evident proposition. The office of the proclamation is to designate
the subjects, and not the manner or extent of legislation on such subjects. "It was
not the intention to require the governor to define with precision, as to detail, the
subjects of legislation, but only in a general way, by his call, to confine the business to the
particular subjects." Mitchell v. Turnpike Co., 3 Humph 455; Devereaux v. City of
Brownsville, 29 Fed. Rep. 742; Baldwin v. State, 21 Tex. App. 591, 3 S. W. Rep.
109. That the legislature may only enact legislation in part in relation to the
subject mentioned in the call does not render such legislation invalid, nor is it
necessary to the validity of such legislation that the whole subject-matter should be acted on
by the legislature. The call includes the entire subject of reapportioning the
judicial districts, and authorized "any and all such legislation upon that subject as was
deemed necessary by the legislature. It was not necessary, nor would it have been
proper, for the governor, in his proclamation, to have suggested, in detail, the legislation
desired. It was for the legislature to determine what the legislation should be."
Baldwin v. State, 21 Tex. App. 591, 3 S. W. Rep. 109. 2. We do not concur in contention of counsel
that the object and purpose of the act are not sufficiently stated in its caption. It was
not necessary to state in the caption the different counties constituting the
newly-constituted district, nor to state that one of the counties composing such district was
transferred from some adjoining district. The caption is sufficient, and not violative of
article 3, § 35, Const. [FN1] FN1 Const. art. 3, § 35, provides that no
bill shall contain more than one subject, which shall be expressed in its title. 3. Defendant's motion to set aside and quash the
indictment because he was not allowed an opportunity for challenging the array of
jurors constituting the grand jury was not well taken. He made no request to be brought
from jail for that purpose. This was necessary. Code Crim. Proc. art. 377; [FN2]
Willson, Crim. St. §§ 1901, 1902. FN2 Code Crim. Proc. art. 377, provides
that any person, before the grand jury has been impaneled, may challenge the array, or any
person presented as grand juror, and in no other way shall objections to the legality of
the grand jury be heard, and that any person confined in jail in the county shall, on
his request, be brought into court to make such challenge. 4. A continuance was sought in order to have
analyzed the blood found upon the defendant's clothing. There was no diligence used to obtain
such analysis, and no excuse given for such failure. The murder occurred October 15th, and the
application for continuance was filed January 14th following. Again, the blood spots
were found upon defendant's hat, *134 pants, shirt, and shoes, and the application alleges it
came from a squirrel he had dressed on the morning preceding the homicide at night. The
evidence adduced by himself, as well as by the state, shows that he did not dress the
squirrel. He introduced his daughter, who stated that a squirrel **602 had been given her
on the morning in question, but that it was dressed before she received it, and she carried
it home after it was given her, and the state introduced the witness who made the
present, and who also dressed it. The analysis could not have been material, under the facts of
this case. 5. When the allegations in a bill of exceptions
are contradicted by a statement of the court, annexed to the bill, such statement will
be held to correctly present the matter at issue. As thus qualified, the bill disclosed
that Oliver Wilkins, husband of deceased, said to defendant, "Aleck, you have
killed my wife." Defendant made no reply, and walked off. The admission of this evidence
was not error. 6. It was not error to receive and record the
verdict on Sunday. Powers v. State, 23 Tex. App. 42, 5 S. W. Rep. 153; Walker v.
State, 13 Tex. App. 618; Shearman v. State, 1 Tex. App. 215. 7. The bill of exceptions recites the reception
of the verdict on Sunday, which was the 15th day of the month. The entry of the judgment
is shown by the transcript to have been made on the 14th. Because of this variance
it does not follow that the judgment was entered on Sunday. If entered on Sunday, it
was a fact easy of ascertainment and proof, and should have been shown, if it was
desired to set aside the judgment on this ground. We are not authorized to presume, from
the variance in the dates stated, that such entry actually occurred on the 15th, or on
Sunday. Presumptions are indulged in aid and support of the judgment. The party
attacking the judgment must overcome such presumptions. The day set out in record of
judgment simply recited the beginning of the trial. 8. The court's omission to instruct the jury in
regard to the law of manslaughter was not error. The evidence does not raise that
issue. 9. The evidence supports the conviction. In
addition to previous quarrels and difficulties between the parties, and threats of the
defendant against deceased, the killing, and the manner of its execution, were attended with
such circumstances of enormity and cruelty as afford sufficient evidence to warrant
the conclusion that the killing was the result of a sedate, deliberate mind, and
formed design, and that it was committed upon express malice. The judgment is affirmed.
Judges all present and concurring. Tex.Crim.App. 1893. BROWN v. STATE. 22 S.W. 596, 32 Tex.Crim. 119 END OF DOCUMENT ================= APPEAL from the District Court of Washington.
Tried below before the Hon. I. B. McFarland. *1 The indictment charged the appellant with the
murder of Major Williams. His trial resulted in his conviction of murder in the first degree,
and he was awarded the death penalty. John McDade, a colored man, was the first
witness presented by the State. He identified the defendant, testified that he knew the deceased,
Major Williams, in his lifetime, and was present when the latter was killed by the former
in Washington county, Texas, on the seventeenth of September, 1881. The parties were
present at an entertainment at Jack Wilson's. The deceased was occupying a seat in
the house, when Peter Petty entered and ordered him to surrender his seat, which the
deceased refused to do, whereupon Petty spit in his face. The deceased got up, and Petty
drew a pistol, but Andy Toms took the deceased out of the house. After the deceased was taken from the house, the
witness saw the defendant inside with a knife in his hand. He, the defendant, followed
the deceased out of the house, and while the deceased and the witness were facing
each other in the yard, the defendant came up, and asked the deceased if he cursed
his, the defendant's, wife. To this inquiry the witness replied to the defendant that the
deceased had not cursed his wife, and the deceased said that if he had cursed the
defendant's wife, he, the deceased, "was man enough to stick to it;" thereupon, the
defendant struck the deceased in the breast with a knife, and the deceased fell and died in a few
minutes. The knife was about five inches long, the blade being two and a half inches in
length. After the stabbing, the defendant walked around
the yard and said that he was ""the best d--d man there." At the time he was
stabbed, the deceased had his hands down by his side; he had no knife in his hands, and made no
demonstration or motion to strike the defendant. The deceased was about eighteen years old and in
good health when he was killed. Ann Hackett, the wife of the defendant, was walking
around the yard with a pistol when the deceased was killed. The witness saw the wound
on the body of the deceased at the inquest held on the day after the stabbing. The knife
had penetrated the left breast near the nipple. On his cross-examination the witness repeated
substantially the account of the tragedy detailed in his examination in chief. He denied
that he struck Pete Petty on the head that night, and said that he saw no other person
strike Petty. The house at which the party was given, and
where the tragedy was enacted, had two rooms, one being a shed room with a partition. The
large room was about ten feet by twelve in size. The house had three doors, one of the
doors being in the west end of the large room, and another in the partition. When Petty told
the deceased to get up, the latter was seated on a bench on the north side of the large room.
Mollie Randle and another girl were seated near him. The deceased fell back towards the
door when the defendant struck him with the knife. He had one foot on the door step just
before he fell. The witness was not drunk that night, but had taken two or three drinks. Byrd
Kuykendall had liquor in the little room, and would give it away to any one who would buy
candy from him. The witness denied that on the day before this trial he told Major
Breedlove, of counsel for the defense, that Bettie Boulding was standing by him when the
deceased was killed, but did tell Breedlove that Bettie Boulding said that she knew nothing
about the killing. Willis Boulding was about the premises at the time of the killing,
or at least the witness supposed so, as immediately afterwards he came up to the body.
Eli Randon, the witness thought, was standing near the southwest corner of the house
when the cutting was done. Byrd Kuykendall was standing very near the witness
when the cutting occurred. Rachael McDade, the wife of the witness, was within ten
feet of him. Henry and Jerry Mays stood within eight feet of the place when the
killing occurred. The witness did not see the deceased have a knife at any time that
night. He most positively had none in his hand when he was killed. The defendant took
up for Peter Petty in the difficulty in the house which arose over Petty spitting in
the face of the deceased. There was a light in the house and two torchlights in the
yard at the time of the killing, one of them being held by Rachel McDade, the wife of
the witness. *2 Still testifying on his cross-examination,
the witness said that he saw the open blade of the knife in the defendant's hand
before he struck the deceased. Witness did not attempt to prevent the defendant from
cutting the deceased, because he was afraid of being cut himself. The defendant had his
knife in his hand, down by his side, just before the cutting. The witness and his wife
left the place and went home as soon as the deceased fell, did not stay until he died,
which, he was informed, took place within five minutes. He was present at the
inquest next morning. The witness was not drunk, and was positive in his declaration that
his wife Rachel had a lighted lamp in her hand at the time of the killing--as positive
of that as of any other fact, and declared that if he was not correct in that
statement, he was correct in nothing he had stated. He knew that the deceased and the
defendant had been good friends, and did not know that they had ever had a previous
disagreement. Eli Randon, colored, was next introduced by the
State. He testified that he was present and saw the stabbing. Just before it occurred,
Pete Petty was running around the yard with a pistol in his hand, and the defendant was
standing talking to the deceased in the yard with an open knife in his hand, holding
it behind him with the blade pointing out. The witness took a light from some one in
the door and looked to see whether it was a knife or a pistol. The deceased was doing
nothing whatever when the defendant struck him in the breast with the knife. He had
his hands down beside his body. After stabbing the deceased, the defendant walked off
waving his knife and saying something. After he was cut, the deceased walked about his
length and fell by the door of the house, where he expired in about three minutes.
The witness remained with the body all night. The deceased was doing nothing at the
time he was stabbed. He had no knife in his hand, nor did the witness find one about his
person afterwards. The wife of the defendant was on the premises, declaring that
she would blow a hole through any one who interfered with the defendant. Prior to the
killing the defendant was walking around, mad at and cursing the deceased, and was
cursing him when he inflicted the wound. On his cross-examination, the witness stated
that he was in the house when the difficulty took place between the deceased and
Pete Petty. The deceased and the defendant had a slight misunderstanding or
quarrel in the house, which did not amount to much. At the time the deceased
"went for" Petty, the defendant took hold of him, the deceased. Andy Toms and the
deceased, the witness thought, went out of the house first, the defendant following. The
witness went out after them, to quiet the row if he could. Petty was walking about the
yard cursing, and was standing, as near as the witness could tell, about six feet
from the northwest corner of the house, when the killing took place. Bettie
Boulding was at the house that night. The witness saw Rachel McDade there, but saw
nothing in her hands. *3 Andy Toms, for the State, gave substantially
the same account of the killing as that given by John McDade. He added that when
the deceased and Petty got into the difficulty in the house, he, witness, took the
deceased out of the house, but the deceased returned, and the witness did not know
whether the deceased or the defendant came out of the house first the second time. The
deceased quarreled with no one when he went back into the house, so far as the
witness knew. The deceased and the defendant had hold of each other in the house, but that
row did not amount to much. On his cross-examination, the witness stated
that he did not know that the defendant took hold of the deceased to prevent Pete Petty
from assaulting him. The defendant had hold of the deceased's hand when the witness
started out of the room with the latter. But few minutes elapsed between the
dispute in the house and the cutting. After the cutting the defendant went around the
corner of the house, waving his knife and saying, "What a G--d d--d good
man I is!" Rachel McDade testified, for the State, that she
was standing near her husband, John McDade, when the cutting took place. The
defendant approached the deceased and said, "Take it back!" The deceased
replied, "By G--d, you can't make me take it back!" whereupon the defendant stabbed
him. After cutting the deceased the defendant ran to his horse, calling to his wife
to come on. The witness had no lamp in her hand. Cross-examined, the witness stated that she
stood in front of the deceased when he was stabbed. She did not see the difficulty
in the house. Just about or near the time of the cutting some one brought a lamp
out near the parties and placed it on the ground. The witness picked it up and
put it in the door. "If any body says I had a lamp in my hand he tells a yarn!??
The witness went off home when the deceased fell. Other testimony introduced by the State
harmonized in every particular with that recited--all concurring in the declaration that
the deceased exhibited no knife, and that none was found about him after his
death. For the defense, Andrew Harris testified that he
saw nothing of the killing. He detailed the difficulty in the house between
Petty and the deceased, and declared that, as soon as that started, the deceased and
the defendant went to fighting. Thereupon the witness left, going home, and witnessed
none of the after occurrences. Wash. Pleasants, for the defense, stated that
upon the commencement of the difficulty between the deceased and Petty in the
house, prior to the cutting, the deceased and the defendant became involved
in a fight without exchanging a word. They passed one blow and clinched. He next
saw the defendant and a number of others going out of the door. W. Ward, for the defense, described the row
between the deceased and Petty in the house. He did not see the defendant and the
deceased in a row in the house. He stated that the defendant went out of the house
in advance of the deceased. *4 The opinion sets out the statement of Bettie
Boulding as it appears in the defendant's application for a continuance, and
which was read in evidence. The defendant's motion for a new trial raised
the questions involved in the rulings of this court. The rule laid down in Skaro's case (43 Texas,
88) is "that an admission that a witness, on account of whose absence a
continuance is asked, would swear, if present, as stated in the affidavit for
continuance, will not defeat (the application)." Such rule applies only where the defendant is
legally entitled to a continuance; and hence the defendant in this case was not injured
by a charge which instructed the jury, in substance that the written statement
contained in the motion for continuance should be received, and given the same weight,
and no more, as if the witness had been on the stand. An agreement to permit defendant to read the
testimony of an absent witness, in order to avoid a postponement, held not to preclude
the state from introducing the absent witness, if possible, before the conclusion of
the evidence. Instructions that, from the evidence, the jury
were to "deduce the guilt or innocence of defendant," held erroneous, because
repugnant to the doctrine of the presumption of innocence and reasonable doubt. The court, in a trial for murder, instructed the
jury that it was for them to determine the facts from the evidence before
them, "and, applying the facts thus ascertained to the law as above
given you, it will be your duty to deduce the guilt or innocence of the
defendant." Held, erroneous, inasmuch as the jury is required to believe
the defendant innocent in order to acquit, and because repugnant to the rule
which requires a verdict of not guilty, unless the state establishes the
guilt of the defendant beyond a reasonable doubt. In a criminal prosecution it is incumbent on the
trial court to charge the jury upon every phase of the case made by the
evidence. Evidence in a murder trial held to require a
charge on the subject of "cooling time." McAdoo & Vinson, and Breedlove & Ewing,
for appellant. J. H. Burts, Assistant Attorney General, and F.
D. Jadon, for the State. HURT J. George Hackett was tried and convicted for
murder of the first degree, and his punishment assessed at death. We will consider the assignments of error in the
order presented in the brief of the appellant, except those relating to the charge
of the court, which will be considered last. The first error assigned relates to the
overruling of the defendant's application for a continuance. In regard to this matter,
there was no error of which the defendant can complain, the witness Bettie Boulding being
present in court before the evidence was concluded. The seventh assignment of error is, that
"the court erred in overruling the defendant's motion for new trial; 1, on acount of newly
discovered evidence; 2, in that the court allowed the State to introduce Bettie Boulding
on the stand, in the face of the written agreement to read the statement of what her
testimony would be." With regard to the last ground in this
assignment, we are informed by the record that the defendant had not been served with a copy of
the venire facias, and that the cause was about to be postponed, when a written
agreement was entered into by the defendant and the county attorney to the effect that the
defendant would announce with the right to read to the jury, as evidence, the testimony
of Bettie Boulding as set forth in the defendant's motion for continuance. There was nothing in this agreement which inhibited
the county attorney from introducing the witness, if her presence could be had.
Certainly the defendant could not be heard to complain of the introduction of a witness who,
according to his oath, would swear to such a perfect defense to the charge pending against
him. If this motion for continuance was made in good faith, the introduction of this
witness would have been heard with perfect satisfaction. We are of the opinion that,
notwithstanding the agreement, the county attorney had the right to introduce and examine
the witness Bettie Boulding. This, however, was not allowed when the defendant
objected. Counsel for the defendant assigns as error the
charge of the court which relates to the evidence of this witness. The charge was, in
substance, that the written statement contained in the motion for continuance should
be received and given the same weight, and no more, as if she had been on the witness
stand. Counsel insists that the rule stated in Skaro v. The State, 43 Texas, 88, is
in point. The rule there stated is "that an admission that a witness, on account of whose
absence a continuance is asked, would swear, if present, as stated in the
affidavit for continuance, will not defeat the application." If the defendant in the
case in hand had been legally entitled to a continuance, the above rule would apply;
but, as he was not injured in this matter (the witness Bettie Boulding appearing in
time to be used as a witness), the rule has no application whatever. *5 We will now consider the charge of the court,
in which we think there is error. In the twelfth subdivision of the charge the
court instructed the jury as follows: "It is for the jury to determine the facts
from the evidence before them, and applying the facts thus ascertained to the law as above
given you, it will be your duty to deduce the guilt or innocence of the
defendant," etc. Deduce the innocence of the defendant! Mr.
Webster says that "deduce" means "to derive by logical process; to obtain or arrive at as
the result of reasoning; to infer." Reasoning is nothing but the faculty of deducing
unknown truths from principles already known. To justify an acquittal, must the innocence of
the defendant be deduced, reasoned out, or inferred, by applying the facts ascertained
to the law as given by the court? It is well settled in criminal law that the jury
need not believe the defendant innocent in order to acquit. The State asserts
an affirmative proposition, which is the guilt of the defendant, and the jury must
acquit by finding not guilty unless the State establishes this proposition beyond a
reasonable doubt. If the jury are required to deduce the guilt or innocence of the
defendant from the law and evidence (under a rule of criminal law), they would be
placed in a very perplexing and inconsistent condition. The rule of criminal law referred to
requires the jury to believe from the law and evidence that the party is guilty
beyond a reasonable doubt, before they will be warranted in law to convict. The jury
may believe him guilty; this belief will not suffice unless from the law and
evidence they are satisfied of his guilt beyond a reasonable doubt; and if not so
satisfied they, under the law, must acquit by finding him not guilty. They are not required
to believe him innocent. The verdict of not guilty is simply, in effect, to deny that
the State has established the affirmative proposition, which is the guilt of the
defendant, beyond a reasonable doubt; and is not a declaration of innocence. The jurors may
believe him guilty, but can not, because of doubt, convict. Under this charge they can not
acquit because they believe him guilty. They have deduced his guilt, but not beyond a
reasonable doubt, hence can not convict. They have not deduced his innocence; hence under
this charge they can not acquit. We are of the opinion that this charge is
erroneous, and is in direct conflict with the rule that the person is presumed innocent until
his guilt is established beyond a reasonable doubt. We are of the opinion that the law was not
applied to the theory of the case presented by the evidence of the witness Bettie Boulding. The
facts expected to be proved by this witness, as found in the motion for continuance
and by agreement read to the jury, are as follows: "That she was present at the
time of the difficulty. That Major Williams struck the defendant in the house without any
provocation whatever, and also drew an open knife on the defendant and tried to cut him
with the knife; and that the defendant, to keep Williams from cutting him, ran out of
the house; and that Williams immediately followed the defendant out of the house into the
yard with an open knife in his hand, and was trying to cut the defendant with the
knife; and that two or three persons were assisting Williams in his efforts to get to
defendant with the knife; that Williams was mad and cursing the defendant; that, while
Williams was pursuing and cursing the defendant, and so being assisted by other
persons in the yard, the defendant struck with his knife in his own necessary
self-defense. That the defendant was all the time, from the beginning to the ending of the
difficulty, at the time and place acting in his necessary self- defense, and was all the
time trying to prevent a difficulty and to avoid any collision with Williams and all
other persons." *6 The court charged upon murder of the first
and second degrees and manslaughter, and submitted this, and only this, charge upon the
subject of self-defense: "Homicide is permitted by law when inflicted for the purpose
of preventing the offenses of murder, rape, robbery, maiming, disfiguration,
castration, arson, burglary and theft at night; but in such case it must reasonably appear by
the acts, or words coupled with threats of the person killed, that it was the purpose
and intent of such person to commit one of the offenses named." Considered in the light of the facts in this
case, this is a most remarkable charge. What had robbery, maiming, theft at night, or
castration to do with this case? The deceased was killed at a social gathering. There was no
attempt to rob, rape, maim or castrate any person. There is another serious objection to this
charge. It requires the words to be coupled with threats in order for it to reasonably appear
that it was the purpose and intent of the party killed to commit one of the offenses.
The purpose may appear with threats if the words are coupled with the acts of the party
killed. But suppose that the above charge was perfectly unobjectionable in every
particular, it would simply announce an abstract proposition of law. There is no attempt
to apply the law to that theory of the case which is presented by the evidence of
Bettie Boulding. The rule upon this subject is, that instructions should not be presented in
the form of abstract propositions, but should be constructed upon the evidence in the
particular case at bar. A state of facts should be supposed which accords with the
evidence; then deduce the legal conclusions applicable to such state of facts. (Burrell v.
The State, 18 Texas, 713; O'Connell v. The State, 18 Texas, 343.) This rule applies not
only to the case as made by the evidence, but to every phase which has any support in any
part of the evidence. We are of the opinion that the court should have
applied the law directly and affirmatively to the theory of the case made by
the evidence of the witness Bettie Boulding. We also suggest the propriety of
instructing the jury upon the subject of cooling time, in view of the evidence of some of
the witnesses for the defendant. The other assignments will not be discussed, as
the case will probably be divested of these questions on another trial. For the errors in the charge the judgment is
reversed and the cause remanded. Reversed and remanded. Tex.Ct.App. 1883. GEORGE HACKETT v. THE STATE. 13 Tex.App. 406, 1883 WL 8812 (Tex.Ct.App.) END OF DOCUMENT |
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