Bastrop County, TX
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SUPREME COURT RECORDS PAGE 18

File contributed by Lisa Lach and proofed/formated by Dena Stripling

Tex. 1875.

CALVIN THOMPSON v. THE STATE.

43 Tex. 268, 1875 WL 378 (Tex.)

A statement in the concluding argument by the district attorney, insisting

that the fact that the acting justice of the peace held accused to bail was

evidence that the justice thought him guilty, is a reversible irregularity.

In an indictment for theft of several articles of the aggregate value of

over $20, it is sufficient to allege such aggregate value. It is not

necessary that the separate value of each article be set out.

To convict upon an indictment for theft of several articles, where the

aggregate value only of such articles is alleged, the testimony must show

the theft of all of the articles alleged to have been stolen.

On trial of an indictment for theft, a charge that mere possession of

property recently stolen is prima facie evidence of theft, which casts upon

the defendant the necessity of explaining such possession, is error; the

rule being that the possession of property recently stolen is evidence

against the accused, which may be considered by the jury in connection with

the other testimony in the case.

*1 APPEAL from BASTROP. Tried below before the Hon. J. P. RICHARDSON.

Calvin THOMPSON was indicted for theft of "four barrow hogs and two sow hogs

of the aggregate value of thirty dollars."

On the trial the owner of the hogs testified that his "hogs were missing

about first of April, 1874. Some time about the first of July the two sows

came home without the others and in the mark of the defendant."

* * "When the two sows came back I told Jim WILLIAMS, a freedman, who was

living with me, to go to the defendant's house and look for my hogs. In a

day or two WILLIAMS told me he saw four of my hogs in a pen on the premises

of the defendant. I then applied for a search-warrant and went to

defendant's house. This was about 6th July; found four hogs in defendant's

pen, being the four barrows described in the indictment."

There was a conflict in the evidence as to ownership. THOMPSON's claim to

the hogs had been public, and no attempt at concealment of the hogs was

shown. No other evidence was given as to the two sows.

M. W. TRIGG, for defendant, testified that some time in the spring of 1874

defendant came to witness for advice about a lot of his hogs that had come

up with their mark changed. Witness advised him he had better go slow about

taking hogs--to put up the hogs and keep them until somebody came and

claimed them, in which event he could try the right of property in the hogs.

This was before the arrest.

H. J. WAMEL, for defendant, testified that he was a justice of the peace in

BASTROP county; that about the last of March or first of April witness went

to defendant's house to see about the election, which was soon to come off;

while there defendant called the attention of witness to and asked witness

to look at some of his hogs, the marks of which had been recently changed.

The defendant asked witness what he must do about them. Witness told

defendant to put them up in a pen and let the person who had changed the

mark come and claim them; that in that way the party could be caught and

prosecuted. These hogs were the same described in the indictment.

The judge, after defining theft and its punishment, charged the jury as

follows: "If hogs are going at large in their range, they are in possession

of the owner, and if they are taken from the range, they are taken from the

possession of the owner.

"Possession of property which has been recently stolen is prima facie

evidence of theft, and it devolves upon the defendant to explain such

possession so as to rebut that presumption or so as to raise a reasonable

doubt in your minds of his guilt.

If the defendant took the hogs in good faith, believing them to be his own,

then he is not guilty of theft, and you should return a verdict of not

guilty."

The defendant asked the following instructions:

*2 "A preponderance of testimony in favor of the State in a criminal

prosecution for theft as to the title to the property is not sufficient to

warrant a conviction.

But when there is a conflict of testimony relative to the title in order to

convict the defendant of theft, the State must show beyond a reasonable

doubt that the defendant took the hogs in the indictment not only unlawfully

but fraudulently."

Which was refused by the judge because "sufficiently given in the general

charge, so far as it applies to this case."

In the concluding argument by the district attorney it was insisted that the

fact that the other witness, WAMEL, acting justice of the peace, held the

witness to bail, was evidence that said WAMELL thought him guilty, to which

the defendant objected upon the ground that the argument was not fair and

legitimate, as the defendant could not reply, and appealed to the court, but

the court in the presence of the jury told the district attorney to proceed.

The jury found the defendant guilty, and assessed his punishment at two

years' confinement in the penitentiary; upon this, judgment was rendered.

Motions for new trial and in arrest of judgment were overruled and defendant

appealed.

JONES, SAYERS & RUSSELL, for appellants.

A. J. PEELER, Assistant Attorney General, for the State.

MOORE, ASSOCIATE JUSTICE.

Whenever the value of the property alleged to have been stolen is an element

for determining the grade of the offense or the extent of its punishment, it

is unquestionably necessary to allege in the indictment the value of the

stolen property. Obviously, therefore, when the difference between grand and

petit larceny is distinguishable merely by the value of the property stolen,

not only must its value be stated, but where several articles are stolen,

unless the value of each article stolen is alleged instead of the aggregate

value of the whole, if there is a failure in the proof of the larceny of

some of them, a general verdict would not be justified by the evidence or

warrant a judgment, because in such case the indictment would not show the

value of the articles proved to have been stolen or the grade of offense of

which the defendant should be adjudged guilty. It is therefore generally

customary, and is certainly more prudent, to allege the separate value of

the articles stolen, rather than to charge merely their aggregate value.

Still, if the indictment is in all other respects sufficient, on sound

reason it cannot be held to be defective merely because it alleges the

aggregate value instead of the several individual values of the articles

charged to have been stolen. That under such character of indictments

parties may escape conviction for the lesser grade of offense, is an

objection to the policy, and not to the legal sufficiency of such

indictments.

But while we do not think the motion to arrest the judgment on this ground

should have been sustained, we think the application for a new trial should

have been granted, because the verdict is not warranted by the evidence. In

all ordinary criminal cases it is said that a general verdict of ""guilty"

is a finding for the State of everything which is well charged in the

indictment. Thus, it finds that the defendant stole every article specified

in the indictment, and that they are of the value charged. If the evidence

is not sufficient to warrant these conclusions, then it cannot be said that

a general verdict which imports them is justified by it or should be

sustained. In this case there certainly can be no pretense that the

testimony in the record will warrant the conviction of appellant for

stealing the two sows. "That they came home some time about the first of

July in the mark that defendant gives," which is all the testimony, is

altogether insufficient to sustain the verdict as to them, is too obvious

for comment. Yet the only testimony as to value was with reference to the

aggregate value of all the hogs as laid in the indictment. And even as to

the four barrow hogs, while there is much and strongly conflicting testimony

as to which of the claimants was the owner of them, there is little, if any,

credit to be given to appellant's witnesses, which warrants the belief that

they were fraudulently and feloniously taken by him.

*3 In view of the facts of this case and the issue presented by them, there

was error in the charge given by the court as well in its refusal to give

that asked by the defendant. When property is shown to have been recently

stolen and there is no question as to its title, but the point in dispute is

whether the defendant is the thief, unquestionably proof of possession of

the property by the defendant shortly after it was stolen may be adduced as

evidence tending to prove defendant guilty of the theft. But even then it is

not strictly correct to charge the jury that mere possession of property

recently stolen is prima facie evidence of the theft, which devolves upon

the defendant the necessity of explaining such possession, so as to rebut

the presumption or raise a reasonable doubt in the minds of the jury of

defendant's guilt.

Such charge reverses the rule as to the burthen of proof, and transfers it

from the State to the defendant. The charge in effect tells the jury, if

defendant is shown to have been in possession of the stolen property, they

should find a verdict against him, unless he can rebut the presumption or

raise a reasonable doubt in their minds of his guilt, while the true rule is

that the possession of property recently stolen is evidence against the

accused, which, like all other evidence, is to be taken and considered by

the jury in connection with the other testimony in the case. And unless the

jury, on consideration of it in connection with the other evidence before

them, are satisfied of the guilt of the accused beyond all reasonable doubt,

they should acquit him. In this case there was no controversy in regard to

the possession of the four barrows in question. Appellant not only admitted

possession, but claimed them as his property, and supported his claim by

strong testimony tending to establish its truth. Under such circumstances,

the issue upon which the case should have been decided was whether the hogs,

if not his property, were taken by the defendant, believing them to be his,

or whether he took them fraudulently and with the intent to deprive the

owner of them. This issue is clearly presented in the charge asked by

appellant and it should have been given.

The character of discussion indulged in by the district attorney in his

concluding address to the jury, as shown by the bill of exceptions, was not

justified or warranted by the evidence in the case or what had been said by

appellant's counsel, to which it is claimed to have been a legitimate

response. And such line of argument should not have been insisted upon by

him or allowed by the court when objected to by defendant's counsel. But

whether it was, notwithstanding the charge of the court in reference to it,

given at the instance of defendant, calculated to do him such injury as

should, if it stood alone, require a reversal of the judgment, need not on

the present occasion be decided, as this must be done for the reasons

already stated. We deem it, however, of sufficiently grave importance and so

highly objectionable as to require the decided condemnation of the court.

Zeal in behalf of their clients, or desire for success, should never induce

counsel in civil causes, much less those representing the State in criminal

cases, to permit themselves to endeavor to obtain a verdict by arguments

based upon any other than the facts in the case and the conclusions

legitimately deducable from the law applicable to them.

*4 The judgment is reversed and the case remanded.

REVERSED AND REMANDED.

======================

Tex. 1876.

ZACK BERRYMAN v. THE STATE.

45 Tex. 1, 1876 WL 9167 (Tex.)

An indictment charging defendant with stealing a "yearling" is sufficient,

under a statute punishing the theft of "cattle."

*1 APPEAL from BASTROP. Tried below before the Hon. J. P. RICHARDSON.

R. C. STAFFORD, for appellant.

George CLARK, Attorney General, for the State.

REEVES, ASSOCIATE JUSTICE.

In this case the appellant moved the court to arrest the judgment on the

following ground:

Because the indictment on which the defendant was tried is defective in

this: said indictment does not describe the property therein alleged to be

stolen as coming within the meaning of the term "cattle" as used in the

statute.

The indictment charges the defendant with stealing a dun-colored bull

yearling, of the value of five dollars, the property of Pat THOMAS.

The statute under which the defendant was indicted provides that if any

person shall steal any cattle, he shall be punished by confinement in the

penitentiary not less than two nor more than five years (Act of May 17,

1873, Paschal's Dig., art. 766.)

As understood in common language, a "yearling" comes under the denomination

of cattle, and is so classed in other statutes for the protection of cattle.

There being no statement of facts or bill of exceptions in the record, the

assignments complaining of the charge of the court and the verdict of the

jury cannot be revised; and no error appearing on the face of the

proceedings, the judgment is affirmed.

AFFIRMED.

==================

Tex.Ct.App. 1876.

GEORGE ROBERTSON v. THE STATE.

1 Tex.App. 311, 1876 WL 9066 (Tex.Ct.App.)

In an indictment for the theft of cattle, a designation of the species is

sufficient-as cow, steer, ox, and the like-without use of the generic term

"cattle," and it was not error to overrule a motion to quash an indictment

for theft of a "beef steer," on the ground that the indictment failed to

allege that the animal was of the "species of cattle."

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

The opinion of the court sufficiently states the case.

JONES & SAYRES and J. P. FOWLER, for the appellant.

H. H. BOONE, Attorney General, for the State.

WINKLER, J.

The appellant was indicted, tried, and convicted in the district court of

BASTROP county on a charge of unlawfully and fraudulently taking from the

possession of G. H. JENKINS, without his knowledge or consent, and with

intent to convert to his own use, "a certain yellow and white pieded beef

steer."

A motion was made to quash the indictment, "because the indictment attempts

to charge the defendant with the commission of a felony, and fails to do so

in that the property alleged to be stolen is not alleged to be of the

species of cattle." The motion to quash was overruled by the court, and the

defendant excepted.

The ruling of the court on the motion to quash is made a ground in a motion

for new trial, which was also overruled. The defendant was then tried on a

plea of not guilty, found guilty by a jury, and his punishment assessed at

confinement in the state penitentiary for a period of four years, and

judgment entered accordingly.

An appeal is taken on the following assignment of errors:

1st. The court erred in its charge to the jury.

2d. The court erred in refusing the charges asked by the defendant; and,

3d. The court erred in overruling the motion for new trial.

Considering the several alleged errors in the order of presentation, as to

the 1st we need do no more than say we have examined the charges as given by

the court, and, when taken in connection with those given at the request of

the defendant, we are of opinion that the law of the case, as made by the

evidence, was correctly given to the jury, and as favorably for the accused

as the testimony warranted.

The 2d error assigned, refusing to give certain charges asked by the

defendant, is not maintainable. Those portions of the several charges

refused which were at all applicable to the case are embraced substantially

in the charges given. The remaining portions were inapplicable, and could

only have tended to confuse the minds of the jury.

As to the remaining error assigned--to wit, the overruling of the

defendant's motion for new trial--we are of opinion this ruling of the court

below was proper. The question of the guilt or innocence of the accused was

fairly submitted to the jury. The evidence on the part of the prosecution

was sufficient to fix on the defendant the wrongful taking of the animal,

under circumstances amounting to theft under the law, and sustains the

verdict of guilty found against him by the jury. There is nothing in the

record to justify us in concluding that the jury exceeded the bounds of a

proper discretion in fixing the punishment as they have done, it being

within the limits prescribed by the statute. The prosecuting witness proved

ownership in himself, not in BURLESON.

*2 Nor do we think the court erred in overruling the motion of defendant to

quash the indictment. The indictment charges theft of "a beef steer." The

objection urged against it is that it fails to allege that the animal was of

the "species of cattle."

Repeated decisions of the supreme court show that in charging theft of

cattle it is only necessary to charge the species--as cow, steer, ox, and

the like-- without the use of the generic term, "cattle." This was settled

law in Texas before the organization of this court, and, as an investigation

of the authorities will abundantly show, correctly settled.

The indictment in this case, in using the word "beef steer," is sufficient,

without the statutory word "cattle," and the motion to quash was properly

overruled.

We have carefully examined all the questions presented in the record and by

counsel in argument, and have not found anything which would warrant us in

reversing the judgment of the district court of BASTROP county rendered in

this case.

Affirmed.

==============================

Tex.Ct.App. 1876.

WILLIAM PERKINS v. THE STATE.

1 Tex.App. 114, 1876 WL 9036 (Tex.Ct.App.)

(Cite as: 1876 WL 9036, *1 (Tex.Ct.App.))

It is an abuse of discretion to refuse a second continuance because of the

absence of witnesses, where accused had caused them to be attached, and they

had given bonds for their attendance, and did attend court until the day of

trial, when they left without his procurement, and where accused was

reasonably certain of being able to compel their attendance at the next

term, though there was another witness who could testify to the facts

expected to be proved by the absent witness, such witness being interested

in seeing accused convicted.

*1 APPEAL from the District Court of Williamson. Tried below before the Hon.

E. B. TURNER.

John DOWELL and Phil. CLAIBORNE, for the appellant.

A. J. PEELER, Assistant Attorney General, for the State.

ECTOR, Presiding Judge.

The defendant was indicted, July 16, 1874, for the theft of a gelding, the

property of J. W. MEARS. He was tried January 11, 1876, found guilty, and

his punishment assessed at five years in the penitentiary. Defendant made an

application for continuance, January 11, 1876, which was overruled upon

certain grounds stated by the judge in the court below; to which ruling the

defendant took a bill of exceptions.

After giving the style and number of the case, the court and term, the

following is a copy of defendant's application for a continuance:

"Now comes the defendant in the above entitled and numbered cause, in his

own proper person, who, after being by me duly sworn, upon oath says that

defendant cannot safely go into trial in said cause at this term of the

court for want of the testimony of Charles COTTINGHAM, William LITTON, and

Bat LANE, all of whom are resident citizens of the county of BASTROP, and

state of Texas, whose testimony is material to aid defendant in his defense

in said cause. Affiant says that he expects and can prove, by each and every

one of said witnesses, that affiant is not guilty of the charge as alleged

in said indictment filed in this cause; and, further, that affiant bought

and purchased said gelding affiant is charged to have stolen from one James

FULLER, and paid him therefor a reasonable consideration, and that affiant's

connection with said gelding is perfectly innocent, and in perfect

conformity with law. That affiant has used due diligence to procure the

attendance and testimony of said witnesses at this term of the court, by

causing an attachment to be issued to said county of BASTROP for said

witnesses on the 10th day of March, A. D. 1875, which was duly served upon

said witnesses by the sheriff of BASTROP county, and the bond of said

witnesses taken by said sheriff of BASTROP county, on the 15th day of April,

1875, for the appearance of said witnesses at the next term of the court

thereafter, and from day to day until this case was tried; and that said

witnesses have, since said bond was taken, been in regular attendance upon

this court, except upon this day, and that affiant does not now know why

said witnesses are not in attendance; that said witnesses are not absent by

the procurement or consent of affiant; that this application is not made for

delay; that the testimony of said witnesses cannot be procured from any

other source; and that affiant has a reasonable expectation of procuring the

attendance of said witnesses in this cause at the next term of the court;"

which was duly signed and sworn to before the clerk of the court.

The defendant took a bill of exceptions to the action of the court on his

application for continuance. The district judge, in overruling the

application for continuance, as stated in said bill of exceptions, did so on

the following grounds:

*2 "1st. The court having commenced on the 3d day of January, 1876, and the

appellant, being out on bail, should have taken some steps to procure his

witnesses.

2d. The application itself discloses the fact there is another man by whom

the fact, to wit, that appellant had purchased the gelding, whose evidence,

if the fact be true, might be obtained; at any rate, if there was any reason

why such person could not be procured, that reason should be stated in the

affidavit."

As to the first point, as has been said by the counsel for the defendant in

their able brief, we simply say that no better diligence could have been

used by appellant to obtain his witness than was used by him and stated in

his application. Defendant states that he had an attachment issued for his

witnesses on the 10th day of March, 1875, which was served upon them by the

sheriff of BASTROP county, and their appearance bonds taken by him, on the

15th day of April, 1875, for the next term of the district court of

Williamson county, and from day to day until the case was tried; and that

his witnesses, since the taking of their bonds, had been in regular

attendance upon the court, except upon the day when the case was tried. The

defendant used all the diligence the law required to procure the attendance

of said witnesses, and the fact that he was out on bond would not authorize

or require him to take other steps to secure their attendance, and it is an

immaterial question as to when the court commenced or when it adjourned. If

appellant's witnesses had been attached, and were under bond for attendance

upon the court, to testify for the defendant in this case, and had appeared

from day to day until the day when the case was called for trial, and were

then absent without his procurement or consent, we think he had used due

diligence, and that he is not to blame for their non-appearance.

The application states that the testimony of the witnesses cannot be

procured from any other source. We believe this is a sufficient answer to

the 2d ground assigned by the judge for overruling defendant's application.

The defendant distinctly states that the testimony he desires could be

proved only by the witnesses he had attached.

The statute, upon the point of negativing, in the application, the fact that

the testimony can be procured from any other source except the witnesses

named in the application, has done so in a particular way, and used certain

words to express it.

If the defendant did purchase the gelding from James FULLER, as he swears in

his application he did, it is probable that FULLER committed the theft

himself, or that defendant had reason for thinking so, and, if so, he

reasonably believed he could not prove that he purchased the gelding from

him, the said FULLER, by FULLER himself.

The statute prescribes the conditions upon which continuances are granted,

and a party will be entitled to a continuance when he brings himself

strictly within the terms of the statute. That bad men will avail themselves

of this rule, to delay or defeat the ends of justice, would be a good reason

to change the law in regard to granting continuances; whilst the law remains

as it is, we should enforce it. We deem it unnecessary to notice the other

points mentioned in defendant's assignment of errors.

*3 The judgment is reversed and the cause remanded.

Reversed and remanded.

=================================

Tex.Ct.App. 1876.

WILLIAM PERKINS v. THE STATE.

1 Tex.App. 114, 1876 WL 9036 (Tex.Ct.App.)

(Cite as: 1876 WL 9036, *1 (Tex.Ct.App.))

It is an abuse of discretion to refuse a second continuance because of the

absence of witnesses, where accused had caused them to be attached, and they

had given bonds for their attendance, and did attend court until the day of

trial, when they left without his procurement, and where accused was

reasonably certain of being able to compel their attendance at the next

term, though there was another witness who could testify to the facts

expected to be proved by the absent witness, such witness being interested

in seeing accused convicted.

*1 APPEAL from the District Court of Williamson. Tried below before the Hon.

E. B. TURNER.

John DOWELL and Phil. CLAIBORNE, for the appellant.

A. J. PEELER, Assistant Attorney General, for the State.

ECTOR, Presiding Judge.

The defendant was indicted, July 16, 1874, for the theft of a gelding, the

property of J. W. MEARS. He was tried January 11, 1876, found guilty, and

his punishment assessed at five years in the penitentiary. Defendant made an

application for continuance, January 11, 1876, which was overruled upon

certain grounds stated by the judge in the court below; to which ruling the

defendant took a bill of exceptions.

After giving the style and number of the case, the court and term, the

following is a copy of defendant's application for a continuance:

"Now comes the defendant in the above entitled and numbered cause, in his

own proper person, who, after being by me duly sworn, upon oath says that

defendant cannot safely go into trial in said cause at this term of the

court for want of the testimony of Charles COTTINGHAM, William LITTON, and

Bat LANE, all of whom are resident citizens of the county of BASTROP, and

state of Texas, whose testimony is material to aid defendant in his defense

in said cause. Affiant says that he expects and can prove, by each and every

one of said witnesses, that affiant is not guilty of the charge as alleged

in said indictment filed in this cause; and, further, that affiant bought

and purchased said gelding affiant is charged to have stolen from one James

FULLER, and paid him therefor a reasonable consideration, and that affiant's

connection with said gelding is perfectly innocent, and in perfect

conformity with law. That affiant has used due diligence to procure the

attendance and testimony of said witnesses at this term of the court, by

causing an attachment to be issued to said county of BASTROP for said

witnesses on the 10th day of March, A. D. 1875, which was duly served upon

said witnesses by the sheriff of BASTROP county, and the bond of said

witnesses taken by said sheriff of BASTROP county, on the 15th day of April,

1875, for the appearance of said witnesses at the next term of the court

thereafter, and from day to day until this case was tried; and that said

witnesses have, since said bond was taken, been in regular attendance upon

this court, except upon this day, and that affiant does not now know why

said witnesses are not in attendance; that said witnesses are not absent by

the procurement or consent of affiant; that this application is not made for

delay; that the testimony of said witnesses cannot be procured from any

other source; and that affiant has a reasonable expectation of procuring the

attendance of said witnesses in this cause at the next term of the court;"

which was duly signed and sworn to before the clerk of the court.

The defendant took a bill of exceptions to the action of the court on his

application for continuance. The district judge, in overruling the

application for continuance, as stated in said bill of exceptions, did so on

the following grounds:

*2 "1st. The court having commenced on the 3d day of January, 1876, and the

appellant, being out on bail, should have taken some steps to procure his

witnesses.

2d. The application itself discloses the fact there is another man by whom

the fact, to wit, that appellant had purchased the gelding, whose evidence,

if the fact be true, might be obtained; at any rate, if there was any reason

why such person could not be procured, that reason should be stated in the

affidavit."

As to the first point, as has been said by the counsel for the defendant in

their able brief, we simply say that no better diligence could have been

used by appellant to obtain his witness than was used by him and stated in

his application. Defendant states that he had an attachment issued for his

witnesses on the 10th day of March, 1875, which was served upon them by the

sheriff of BASTROP county, and their appearance bonds taken by him, on the

15th day of April, 1875, for the next term of the district court of

Williamson county, and from day to day until the case was tried; and that

his witnesses, since the taking of their bonds, had been in regular

attendance upon the court, except upon the day when the case was tried. The

defendant used all the diligence the law required to procure the attendance

of said witnesses, and the fact that he was out on bond would not authorize

or require him to take other steps to secure their attendance, and it is an

immaterial question as to when the court commenced or when it adjourned. If

appellant's witnesses had been attached, and were under bond for attendance

upon the court, to testify for the defendant in this case, and had appeared

from day to day until the day when the case was called for trial, and were

then absent without his procurement or consent, we think he had used due

diligence, and that he is not to blame for their non-appearance.

The application states that the testimony of the witnesses cannot be

procured from any other source. We believe this is a sufficient answer to

the 2d ground assigned by the judge for overruling defendant's application.

The defendant distinctly states that the testimony he desires could be

proved only by the witnesses he had attached.

The statute, upon the point of negativing, in the application, the fact that

the testimony can be procured from any other source except the witnesses

named in the application, has done so in a particular way, and used certain

words to express it.

If the defendant did purchase the gelding from James FULLER, as he swears in

his application he did, it is probable that FULLER committed the theft

himself, or that defendant had reason for thinking so, and, if so, he

reasonably believed he could not prove that he purchased the gelding from

him, the said FULLER, by FULLER himself.

The statute prescribes the conditions upon which continuances are granted,

and a party will be entitled to a continuance when he brings himself

strictly within the terms of the statute. That bad men will avail themselves

of this rule, to delay or defeat the ends of justice, would be a good reason

to change the law in regard to granting continuances; whilst the law remains

as it is, we should enforce it. We deem it unnecessary to notice the other

points mentioned in defendant's assignment of errors.

*3 The judgment is reversed and the cause remanded.

Reversed and remanded.

==================

Tex.Ct.App. 1878.

B. F. BALTZEAGER v. THE STATE.

4 Tex.App. 532, 1878 WL 9027 (Tex.Ct.App.)

A verdict will not be disturbed on appeal unless it appears to be against

the evidence.

Where, clearly, the evidence does not warrant a conviction, the appellate

court will reverse.

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

The indictment charged that, on December 19, 1877, the appellant did assault

one John MILLER, and, with force and arms, take from his person and

possession $245 in silver coin and current money of the United States,

specifically described.

MILLER was a peddler, who traveled on foot, leading a horse, with his pack

of merchandise, in which he also carried his money. He testified that, on

December 19, 1877, between eleven and twelve o'clock, as he was proceeding

along a public road, in BASTROP County, two men on foot came suddenly out of

the brush and demanded his money. The defendant was one of the men. He held

a pistol on witness while his companion rifled his pack and secured the

money. They gave back to witness $5 of his money, and told him that they

lived in the neighborhood, and would kill him if he said anything about the

matter. The witness described the money as alleged in the indictment, and

was positive that the accused was one of the two men who took it. The

accused was not disguised in any way, but his companion--a black-haired,

dark-complexioned man--had a handkerchief over his nose and mouth. The

witness gave information immediately of the robbery.

Several other witnesses for the State, who knew the accused, testified that

he and a dark-complexioned, black-haired man were riding along the road on

which the robbery was done, in the forenoon of the day on which it was

committed. One of the witnesses for the State saw the two men described by

the others passing a freedman's house while the peddler was there, about

nine o'clock in the forenoon; but this witness did not know the accused to

have been either of the two.

Quite a number of witnesses testified for the defense, to establish an

alibi, but the significance of their testimony is dependent, in a great

measure, upon localities and distances not distinctly disclosed.

The jury found the accused guilty, and gave him ten years in the

penitentiary. A new trial was refused, and the only error assigned impugns

the sufficiency of the evidence.

G. W. JONES, for the appellant.

George MCCORMICK, Assistant Attorney-General, for the State.

WHITE, J.

Appellant was indicted under article 2379, Paschal's Digest, for robbery,

and was tried and convicted, and his punishment affixed at ten years in the

penitentiary. His defense on the trial below was an alibi, and the only

question raised on this appeal in the able oral argument and brief of the

distinguished counsel for appellant is whether the evidence, as developed by

the statement of facts, is sufficient to uphold the verdict and judgment.

If "the Jew peddler," the party robbed, is to be believed--and the jury seem

to have thought his statement worthy of belief--then there can be not the

slightest question of the defendant's guilt, for he, the witness,

unequivocally and positively identifies him as the unmasked party who held

the cocked pistol presented whilst his companion searched and got possession

of the money. And we further confess that a thorough examination of the

whole evidence has led us to the conclusion that the jury were fully

warranted in the conclusion they arrived at--that defendant was one of the

guilty parties. Other and abundant evidence, besides that of the peddler,

fixes defendant about the time and place of the commission of the crime,

which has not been successfully met, much less overcome, by his supposed

alibi, and the proof adduced to sustain it. This evidence all tends in such

a manner to corroborate and support the direct and positive testimony of the

man who was robbed as to force the conviction upon our minds that the

defendant is one of the guilty parties.

*2 "It is the appropriate province of the jury to weigh the evidence, and,

unless it appears that their finding is against the evidence, this court has

invariably refused to disturb the verdict."

The jury have found the appellant guilty, as we think, upon sufficient

evidence; and, concurring in this finding, and further believing that

defendant has had a fair and impartial trial, during which no material error

was committed, the judgment of the court below is in all things affirmed.

Affirmed.

=============================================

Tex.Ct.App. 1878.

PRIOR JONES v. THE STATE.

4 Tex.App. 529, 1878 WL 9026 (Tex.Ct.App.)

Evidence to corroborate the testimony of an accomplice must, of itself, and

without aid from such testimony, tend in some degree to connect the accused

with the commission of the crime; but the corroborative evidence need not

suffice of itself to establish the guilt of the accused.

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

This capital conviction is one of the results of the midnight assassination

of John BLACK, a negro, by eight of his negro neighbors, instigated by

revenge and guided by superstition and imposture. The facts have been fully

disclosed in the opinion rendered by this court in the case of JACKSON v.

The State, 4 Tex.App. 292.

No brief for the appellant.

George MCCORMICK, Assistant Attorney-General, for the State.

ECTOR, P. J.

The appellant, with seven others, was jointly indicted for the murder of

John BLACK. He was tried and convicted of murder in the first degree.

A motion was made for new trial, for the following reasons, to wit:

"1. Because the court erred in the charge to the jury.

2. The verdict is not supported by the evidence.

3. The verdict is contrary to the law and the evidence."

The motion for a new trial was overruled. The action of the court in

overruling the motion for new trial is the only error assigned by the

appellant. The charge of the court properly presented the law of the case to

the jury. The main question arising on this appeal is whether or not there

was sufficient corroboration of the evidence of the accomplice to justify a

conviction of the appellant.

Article 653 of the Code of Criminal Procedure (Pasc. Dig., art. 3118) is as

follows:

"A conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense."

We have heretofore had occasion to pass upon said article 3118. As we

construe that provision of the statute, the corroborating evidence must, of

itself, and without the aid of the testimony of the accomplice, tend, in

some degree, to connect the defendant with the commission of the offense. It

need not, of course, be sufficient to establish his guilt; for, in that

event, the testimony of the accomplice would not be needed.

There was certainly sufficient evidence in this case, without the aid of the

testimony of the accomplice, to prove that John BLACK was forcibly taken

from his house on the night of December 24, 1876, by a crowd of men, carried

about one mile and a-half, and there murdered, as charged in the indictment,

by them; and other evidence, besides that of the accomplice, tending to

connect the appellant with the commission of the crime.

This is another branch of the case of Burrill and Smith JACKSON v. The State

of Texas, decided by this court during its present term, and we deem it

sufficient to refer to the opinion therein rendered for a decision of the

questions in the case at bar.

We have carefully considered all the evidence in the record, and, without

going into a minute comparison of the testimony, it is only necessary to

state that the evidence is sufficient to sustain the verdict.

*2 We have given this case the consideration which its momentous issues

involve, and we are clearly satisfied that no substantial right of the

appellant has been interfered with on the trial. The entire record discloses

to us no error in the proceedings of the court below.

The judgment of the District Court is, therefore, affirmed.

Affirmed.

===========

Tex.Ct.App. 1878.

BURRILL AND SMITH JACKSON v. THE STATE.

4 Tex.App. 292, 1878 WL 8986 (Tex.Ct.App.)

In a murder trial the evidence of an accomplice together with corroborated

evidence held sufficient to sustain a conviction.

Applications for continuances not based on the statute, and which do not

meet its requirements, are addressed to the discretion of the court, and

should be granted or refused according to circumstances.

The refusal of a continuance, asked by accused, on the ground that a witness

by whom he expected to prove an alibi had been confined in childbirth the

preceding week, and, being still unable to obey process, none had been

obtained to produce her, was a proper exercise of judicial discretion; the

application, which was insufficient as a statutory application, being

addressed to the discretion of the court.

In the trial of two out of eight persons jointly indicted for murder, the

state used an accomplice as a witness, and the court instructed the jury

that his testimony implicating those not on trial need not be corroborated,

and, having otherwise charged the law controlling accomplice testimony,

instructed that contradiction or want of corroboration of the witness in

immaterial matters was of no consequence. Held, in connection with the rest

of the charge, and with the evidence adduced, not a charge on the weight of

evidence, or otherwise erroneous.

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

A very full disclosure of the material evidence in this case will be found

in the opinion of this court, which, in its recital, follows the language of

the statement of facts.

All the parties implicated in the murder were freedmen, as also was John

BLACK, the deceased; and the record shows the terrible issue which imposture

and superstition can engender out of ignorance.

The jury found the appellants guilty of murder in the first degree, and

judgment of death followed, in conformity with the law.

The six other parties jointly indicted with the appellants were Henry OWENS,

Thomas ROBINSON, William PETERSON, Prior JONES, Steve ROBINSON, and one Sam, whose name

was otherwise unknown to the grand jury, but who, doubtless, is the character whom the

witnesses call Sam SQUIRRELHUNTER, the

fortune-teller.

G. W. JONES, D. B. ORGAIN, D. MOORE, and John B. RECTOR, for the appellants.

George MCCORMICK, Assistant Attorney-General, for the State.

WINKLER, J.

The appellants, together with six others, were indicted in the District

Court of BASTROP County for the murder of one John BLACK, alleged to have

been committed on December 23, 1876. These appellants were jointly tried,

separately from the others, at the October term, 1877, of the court, were

convicted of murder in the first degree, and have taken this appeal.

On the eve of the trial the appellant Burrill JACKSON moved the court to

grant him a continuance, and made an affidavit in support thereof, in which

he stated "that he cannot safely go to trial at this term of court, on

account of the absence of Betty JACKSON, a material witness for his defense.

Defendant says he expects to prove by said witness that he was not present

on the day and at the place when and where the murder of John BLACK is said

to have taken place, but that, at the time and on the day said John BLACK

was murdered, defendant was at home with said Betsy JACKSON, and was not

present then, or at any other time, when John BLACK was murdered. Defendant

says he has caused no process to issue for said witness, because it would

have been impossible for her to have come to court, she, the said witness,

having, on last Friday, been delivered of a child, and is still in

child-bed, unable to answer to any process of this cause."

It was further stated in the affidavit that the witness resided in BASTROP

County, and was not absent by his procurement or with his consent, and that

a continuance was not asked for delay. The motion was also supported by the

affidavit of one HUBBARD, as to the residence and physical condition of the

witness, in which it is stated she lived on affiant's place, six miles from

the town of BASTROP, and fixing the date of her confinement as October 19,

1877. The indictment was filed April 25, 1877; the application for a

continuance was sworn to and filed October 23, 1877. The record is silent as

to when the accused was arrested.

*2 On a hearing of the motion it was overruled by the court, and a

continuance was refused. To this ruling of the court the defendant excepted,

and in certifying to the bill of exceptions the presiding judge appends the

following explanation:

"The court believed, from the length of time since the arrest of defendant

without any process to said witness, that said application was not made in

good faith, but for delay."

The refusal of the court to continue the case is the basis of the first

error assigned, and also the first ground in the motion for a new trial.

Testing this application by the rule laid down in the Code of Criminal

Procedure, article 518, governing a first application for a continuance of a

criminal case by the defendant, for the want of an absent witness, it must be held

insufficient as a statutory application, in that there is shown to have been no

diligence employed to procure the attendance of the witness, which is required by

the statute.

Applications for continuances not based upon the statute, and which do not

meet its requirements, are addressed to the discretion of the court to whom

they are made, and should be granted or refused according to the

circumstances, and will not be revised on appeal except in a clear case of

abuse of that discretion.

This discretion, however, is not an irresponsible one, but must be exercised

within the bounds of settled rules of practice. Mr. WHARTON says "the

general rule is that a continuance will be granted on an affidavit setting

forth the absence of a material witness, and alleging that his attendance

will be procured at the next court, and that due diligence has been used in

attempting to procure his attendance." Whart. Cr. Law. But "a

continuance will not be granted on such an affidavit when the prisoner has

been guilty of laches or delay, or of any connivance."

One of the requisites of the foregoing is that the absent witness will be

produced at the next court.

In HYDE v. The State we find authority on the proposition we

are considering. Mr. Justice WHEELER, in delivering the opinion, makes the

following apt quotation from the opinion of SUTHERLAND, J., in The People v.

VERMILLYEA: "The rule is substantially the same in civil and

criminal cases, though in the latter the authorities all agree that the

matter is to be scanned more closely, on account of the superior temptation

to delay and escape the sentence of the law. In cases where the common

affidavit applies, the court has no discretion; the postponement is a matter

of right, resting on what has become a principle of the common law. But when

there has been laches, or there is reason to suspect that the object is

delay, the judge at the circuit may take into consideration all the

circumstances, and grant or deny the application at his pleasure. When the

subject takes this turn, the application ceases to be matter of right, and

rests in discretion."

*3 From this opinion we make this further extract: "In the case of REX v.

D'EON the principles upon which courts are to act in postponing the trial of a

cause on account of the absence of witnesses are clearly laid down, and have since

been received as the settled law in English and American courts. To entitle a party

to a postponement of the trial, three things are necessary: first, to satisfy the

court that the persons are material witnesses; second, to show that the party applying

has

been guilty of no laches or neglect; third, to satisfy the court that there

is reasonable expectation of his being able to procure their attendance at

the future time to which he prays the trial to be put off."

The question here, then, is, Did the court below err in overruling the

application of one of the defendants for a continuance on the grounds set

out as above? From the facts that the indictment was filed in April, and no

legal effort made to secure the attendance of the witness until October;

that the object of obtaining the witness was to prove an alibi, a fact not

shown to have been exclusively within the knowledge of the absent witness;

the application not being in compliance with the statute, and not meeting

the rules as above laid down, either in HYDE v. The State or by Mr. WHARTON,

nor showing that there was a reasonable expectation of procuring the

attendance of the witness at the next term of the court, we are of opinion

that there were sufficient grounds to justify the court in believing that

the application was made for delay, and that it but exercised proper

judicial discretion in overruling the application for a continuance of the

case.

The second alleged error is set out as follows: "The court erred in

proceeding with the call of the special venire over objections of

defendants' counsel, as set forth in the bill of exceptions."

The bill of exceptions contains two causes of complaint: first, that at some

stage of the proceeding, but at what stage is not shown by the record, it

appeared that five persons whose names were on the copy of the venire served

on the defendant, though upon the regular jury drawn by the jury

commissioners, had not been served by the sheriff; second, that it

subsequently appeared that, upon the further call, four other jurors who had

been served were not in attendance. In each case, when the trouble was made

known, the court proposed to suspend the call and order attachments for the

absent jurors, which offer was declined by the defendants; and, with

reference to the last objection, it is stated in the bill of exceptions that

"the call of the venire was proceeded with without opposition, and the jury

was made up without exhausting said venire."

In this proceeding we find no error of which the appellants can be heard to

complain. When the copy of the special venire was served, if there was any

objection to it, exception should have been taken to it in writing, so as to

have the matter settled by the court before proceeding to impanel the jury,

and in the manner pointed out by chapter 3 of the Code of Criminal

Procedure. Pasc. Dig., art. 3031 et seq. The court was not expected to delay

the trial on account of the absent jurors. Any supposed irregularity, such

as is shown by the bill of exceptions, must be considered as having been

waived by the acquiescence of the accused in the completion of the panel

without objection.

*4 The case of BATES v. The State cited by counsel, is not

analogous to the present case, and does not support the views contended for

by the counsel. For aught that is shown from the record, the jury was

selected without the accused having exhausted their peremptory challenges,

and from the special venire served upon them; and it is not made to appear

that the jury was anything else than a fair and impartial one in all

respects.

The third and fourth assignments of error relate to the charge of the court,

and may, with propriety, be considered in connection. They are set out in

the transcript as follows:

"3. The court erred in its instructions to the jury.

4. The court erred in refusing instructions asked by the defendants."

In determining the sufficiency of the charge, reference must be had to the

evidence adduced on the trial, as it is by the testimony, under the

pleadings, that the sufficiency of the charge must be tested. It is in this

manner we ascertain what is the law applicable to the case upon the

questions involved as they arose upon the trial. It may not be amiss to

state, in this connection, that a witness who acknowledges himself to have

been a participant in the alleged murder, or, at any rate, present when it

was perpetrated, was introduced and testified in behalf of the State, which

rendered it necessary for the court to instruct the jury on the law as to

the value of the testimony of an accomplice, and the necessity of

corroboration to warrant a conviction.

That portion of the general charge on the subject is in the following

language, which, for convenience, we have separated into paragraphs and

numbered:

1. "A conviction cannot be had upon the testimony of an accomplice--that is,

any one aiding or abetting, in any way, an offense--unless corroborated by

other evidence tending to connect the defendant with the offense committed;

and the corroboration is not sufficient if it merely shows the commission of

the offense.

2. If the jury believe that there is corroborating testimony connecting the

defendants who are on trial with the offense, then it is immaterial if there

is not corroborating testimony as to other parties not on trial.

3. It is alone the defendants on trial whom you are trying, and whose guilt

or innocence you are examining into.

4. The want of corroboration in the testimony not material, or contradiction

where immaterial, is of no consequence in determining the guilt of the

defendants."

And immediately following is this further instruction:

"If you have any reasonable doubt of the guilt of the defendants, or either

of them, you will acquit such."

It is the fourth paragraph of the charge that is particularly objected to,

and pointed out in the argument of counsel for appellants as being a charge

upon the weight of the evidence, and calculated to mislead the jury in

determining the question of the guilt or innocence of the accused.

*5 After a careful consideration of this portion of the charge, in

connection with those portions which immediately precede, and which

immediately succeed, the portion complained of, we are of opinion that,

presuming the jury to have been composed of men of ordinary intelligence, it

was not liable to the objections urged against it by the counsel. If we bear

in mind that the jury had just been charged that they would not be

authorized to convict upon the uncorroborated testimony of an accomplice,

and that, in order to convict, they must believe that there is corroborating

testimony tending to connect the defendants then on trial with the

commission of the offense--all of which was correct law, as has been

repeatedly held, both by the Supreme Court and this court--we fail to

perceive how the minds of the jury could have been diverted from the main

issue before them; and no injury could have resulted to the defendants by

the jury being told that it was immaterial whether there was corroborating

evidence as to other parties not on trial, or instructed as in paragraph 4

of the charge as set out above; and, especially, as they were told, in very

pointed and expressive language, that "it was alone the defendants on trial

whom you are trying, and whose guilt or innocence you are examining into."

The charge asked by defendants on the subject, whilst more full, is not a

more accurate enunciation of the law than that given by the court. The court

evidently endeavored to confine the jury to a consideration of the case of

those on trial, and none other, and to the vital proposition in the case.

The rule laid down by the court is substantially the rule prescribed by the

Code, as follows:

"A conviction cannot be had upon the testimony of an accomplice, unless

corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense."

It was not sufficient for the corroboration to merely show that John Black

had been murdered, but it must tend to connect the defendants with the

murder. As to who are, in law, accomplices, in the sense requiring

corroboration to convict, see DAVIS v. The State and authorities there cited, and

JONES v. The State.

After a careful consideration of the evidence as set out in the statement of

facts, we are of opinion that there was no such error in the charge of the

court as given, or in refusing the instructions asked by the defendants, as

would warrant a reversal of the judgment.

There remains to be considered the question raised by the fifth and last

assignment of error: Did the court err in overruling the defendants' motion

for a new trial? The main ground in the motion, not already considered, is

that the verdict is contrary to the law and the evidence.

As to the evidence, the proof is clear that the deceased was taken from his

home in BASTROP County, at a dead hour of the night, and most brutally

murdered, about the time charged in the indictment. The main question on the

trial was to ascertain who were the guilty perpetrators of the deed, and

whether these appellants were of the number.

*6 The following extract is made from the statement of facts, and contains

the entire testimony of the alleged accomplice:

"George VEAL, witness for the State, says that he knows the deceased, John

BLACK; knows Smith JACKSON and Burrill JACKSON, the defendants in this case;

says they are in court, and parties defendant; that he [witness], Bill

PETERSON, Tom ROBINSON, Sam SQUIRRELHUNTER, Burrill JACKSON, Smith JACKSON, Hoodlin

Henry [Henry OWENS], Mose, Prior JONES, Richard GRADINGTON, and Freeman SHELTON, took

John BLACK out and hung him, about one and a-half miles from John BLACK's residence,

in BASTROP County, state of Texas; hung him by the neck and left him dead. Smith JACKSON,

Burrill JACKSON, Freeman SHELTON, Sam SQUIRRELHUNTER, Bill PETERSON, and Mose THOMAS

were appointed at a meeting for the purpose, and were the parties that went into the

house of John BLACK, about twelve o'clock, dragged him out, tied his hands behind him,

and carried him off."

On cross-examination: "Hung deceased because they thought he had killed

Hoodlin Henry's child. Had three meetings at three different times before

hanging; had a meeting on the night of the hanging, and two other meetings

on two other nights. That witness, Prior JONES, Steve ROBINSON, Richard

GRADINGTON, and Tom ROBINSON met at first meeting; that at third meeting, no

one present but those at BLACK's house. Smith JACKSON and Burrill JACKSON

were not present at two first meetings. At time of hanging, at which meeting

Sam SQUIRRELHUNTER, Bill PETERSON, Mose THOMAS, Smith JACKSON, Burrill JACKSON, and

Freeman SHELTON were appointed to go in the house and bring deceased out; and those

six did go in the house and brought him out. Some

light in the house; could see these parties in the house; so dark could not

distinguish them from where I was; parties were disguised. If had not known

who the parties were, could not have distinguished or recognized them, or

known who they were. Hoodlin Henry [Henry OWENS] was round at the back door,

opposite to where parties went in house; Hoodlin Henry did not go in house.

Prior JONES rode the mule that dragged the deceased. That if the deceased

had told where the child was, they would not have hung him. That parties, in

their meetings, had never agreed to hang deceased if he told where the child

was; if he did not tell, to hang him. Tom ROBINSON was only one in favor of

hanging him any way; that the agreement was to go and take John BLACK out

and scare him. They thought, by threatening to hang him, he would tell where

the child was; that they believed he [BLACK] knew what had become of the

child. That they had searched for the child, and could not find it; child

been gone about six weeks, and was last seen with boys of deceased. The

missing child was about six years old. That they sent for the man

SQUIRRELHUNTET, that said he was a fortune-teller and could tell all about

the missing child, and that SQUIRRELHUNTER came and met with them in their

meetings, cut his cards and looked in some coffee- grounds, and told them

that John BLACK knew all about the missing child, and knew what became of

the child; and that they all believed it. That there were present at the

tree where and when John BLACK was hung, Prior JONES, Sam SQUIRRELHUNTER, Tom ROBINSON,

Henry OWENS, Richard GRADINGTON, and witness; don't know whether the defendants, Smith

JACKSON and Burrill JACKSON, were at the hanging or not; they started from the house

with John BLACK, and were with him a hundred yards from the house. Henry OWENS held

rope and pulled deceased up; let him [deceased] down, and demanded of him where the

child was; let him down again, and demanded where the child was; and Tom ROBINSON

cried, 'Hang him! that he would ruin all of them if turned loose,' and so

they hung him up, and tied the rope, and left him hanging. Witness couldn't

see defendants at the tree, because so dark; could only recognize voices as

would speak; but there were others present at the hanging, but I could not

distinguish them in the dark. That some parties that went to the house had

floured their hands and necks. The child is now alive, and with its

parents."

*7 This is the entire testimony of one who was, by his own confessions,

present at the perpetration of the murder and conversant with the purposes,

plans, motives, and intentions of the parties who committed the act, and who

was, and we think properly, regarded at the trial as a participant in the

commission of the crime, and whose evidence it became necessary to

corroborate by the testimony of other witnesses, not only as to the fact

that John BLACK had been murdered, but tending to connect these appellants

with the commission of the crime.

To what extent is this accomplice corroborated by the testimony of other

witnesses? Barbary BLACK testified that she was in the house from which the

deceased was taken out and hung. She says: "The confusion and noise waked me

up; did not know time of night; was some fire in the house, a chunk burning;

took one of the parties to be Hoodlin Henry, and one to be Bill PETERSON,

and one, uncle Smith JACKSON; did not know for certain it was either; was

very much frightened."

James HORD testified "that Burrill JACKSON had borrowed his coat the night

John BLACK was hung, after supper; that it was a bluish coat, cloth; had it

about two years; borrowed it after supper, at house of defendant Burrill

JACKSON. I stayed at my cousin's, about one hundred yards from defendant

Burrill JACKSON; that he told Eliza, the wife of deceased, on the next

Tuesday following, that he loaned his coat to Burrill JACKSON on that

night."

B. M. HUBBARD testified, among other things: "We tracked two of the horses'

tracks from BLACK's dead body into Burrill JACKSON's horse-lot; and that two

of the tracks stopped there, and two or three went on. The two horses in

Burrill JACKSON's lot were horses trailed from the tree to which BLACK's

body was hung. One of the horses that made the tracks was in Burrill

JACKSON's lot, and was his horse. It rained on the night of the hanging,

just before BLACK was taken from his house, so that the tracks of the

parties who did the hanging could be easily traced--all tracks before the

rain being completely blotted out by the rain, and those made after the rain

being very plain." Agreeably to the testimony of this witness, the deceased

was hung on the place of the witness.

Eliza BLACK, who appears to have been the wife of the murdered man, was on

the stand as a witness for the State, and from her testimony, as set out in

the statement of facts, we make the following extract:

"John BLACK is now dead; he came to his death by hanging; that on Saturday

night before last Christmas some parties came to John BLACK's house, suppose

about midnight, masked, and took John BLACK out and hung him. They broke the

door down, and four of the parties came into the house; that the names of

the four who came in the house were Tom ROBINSON, Bill PETERSON, Smith

JACKSON, and Burrill JACKSON, and that they had guns in their hands; that

they told John BLACK to march out, and took John BLACK out and carried him

off. Witness saw John BLACK, deceased, next day when he was brought back

home; he was then dead. This occurred in BASTROP County, state of Texas, on

Saturday night before last Christmas, being about nine months ago. I

recognize Smith JACKSON and Burrill JACKSON, the defendants now in court, as

two of the parties who came into the house and carried John BLACK away."

*8 During a seemingly rigid cross-examination, this witness said, among

other things, that Burrill JACKSON had on Jim HORD's coat, and that she only

recognized the parties in the house from their general appearance, but knew

them; that she knew the defendants well, having lived close to them for

about five years.

This testimony, we are of opinion, affords, if true, a sufficient amount of

corroboration of the testimony of the supposed accomplice to entitle his

evidence to consideration by the court and jury.

The evidence was all before the jury. Not only the words spoken by the

witnesses, but their manner and bear??ng whilst testifying in a most

momentous investigation, were open to view and to cross-examination, as well

as to the comment and criticism of counsel. The jury must have believed the

testimony, else they could not, under the charge of the court, have found

the defendants guilty. The whole case, with its evidence, again passed in

review before the judge on the hearing of the motion for a new trial, and

the testimony was again held to be sufficient to support the verdict. This

court would only be justified in setting aside a verdict upon the evidence

when it is shown that the verdict is against the evidence, or without a

sufficient amount of legal testimony to justify a conviction for the crime.

We fail to discover any error in the action of the court below in refusing a

new trial.

A point is made in argument to the effect that the evidence tends to show

that, by the treatment the deceased is shown to have received at the hands

of the mob who finally hung him, he had been deprived of his life before he

was finally hanged by the neck, either by roughly being dragged away to the

final scene or by strangulation by the rope fastened about his neck, by

which he was dragged along; and it is not to be denied there is some

testimony tending in that direction. Yet this but creates a conflict in the

testimony at most, with which it was the peculiar province of the jury to

deal, and is wholly irreconcilable with the history of the transaction as

detailed by the accomplice, supported, as we have seen, by other testimony.

As to the sufficiency of the testimony, the court below was in a better

condition to determine than this court, who have but the bare record as a

guide, whilst, below, the witnesses were personally present.

We are not unmindful of the importance of the opinion now being rendered, or

of the solemn responsibility resting upon the court in passing upon the

merits of this case as shown by the record before us, and we have brought to

its determination the most careful attention, without discovering that the

appellants have not had a fair and impartial trial, in which every material

right of theirs has been carefully guarded; and they having been legally

adjudged guilty of having participated in the perpetration of a heinous

crime, upon a sufficiency of competent testimony, our duty is plain.

The judgment of the District Court is affirmed.

*9 Affirmed.

===========

Tex.Ct.App. 1878.

JOHN JOHNSON v. THE STATE.

3 Tex.App. 590, 1878 WL 8889 (Tex.Ct.App.)

A detective employed by merchants to discover who burglarized their store,

agreed with defendant and another, who were suspected of the crime, to break

into and rob the store. The merchants furnished the detective with a key,

and were prepared to arrest the parties when the entry was effected. Held

that, since the conspiracy was complete when defendants entered into the

agreement, their guilt was not affected by the subsequent consent of the

merchants and the co-operation of the detective in the entry of the store,

if neither the merchants nor detectives suggested the offense or originated

the criminal intent or agreement.

The crime of conspiracy to commit an offense is complete when the

conspirators enter into the criminal agreement, and notwithstanding they do

not proceed to consummate it.

The gist of a conspiracy is the unlawful confederacy to do an unlawful act,

or a lawful act for an unlawful purpose, and the offense is complete when

the confederacy is made.

Where a merchant employed a detective to discover who entered and robbed his

store, and the detective at his instance consorted with two persons whom the

merchant suspected were guilty, and they agreed with each other and the

detective to break in and rob it, and the merchant afterwards furnished the

detective with a key to get in, and prepared to arrest them when it was

done, the conspiracy was complete when the agreement was made; and hence

their amenability for the conspiracy was not affected by the merchant's

subsequent consent, and the cooperation of the detective in effecting the

entry, unless the merchant or the detective suggested the offense or

instigated the agreement.

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

Charley FOSTER, the detective, testified for the state. According to his

testimony the burglary was first suggested by the appellant. The substance

of his statements, in other respects, is condensed in the third head-note.

On his cross-examination he denied that, on the day after the store was

entered, he told L. JOHNSON, at JOHNSON's store, in BASTROP, that it took

him two or three weeks to get HAND and the appellant to consent to break

into HIGGINS & GARWOOD's store; and, further, denied that, at a certain

bar-room in BASTROP, a few days after the burglary, he stated that he got

$50 for getting the boys into the store, and that he would catch anybody for

that amount.

L. JOHNSON, testifying for the defense, explicitly contradicted the first of

FOSTER's denials; and D. C. CLAIBORNE, also for the defense, contradicted

the second.

All other facts of any materiality are indicated in the opinion.

G. W. JONES and J. P. FOWLER, for the appellant, filed an able brief.

George MCCORMICK, Assistant Attorney General, for the State.

ECTOR, P. J.

The appellant and N. S. HAND were jointly indicted for a conspiracy to

commit burglary. The defendant, JOHNSON, was alone tried. The jury found him

guilty as charged in the indictment, and a judgment was rendered adjudging

the defendant guilty of a conspiracy to commit robbery. Because of this

error in the judgment it must be reversed.

The judge charged the law, in substance, as embraced in articles 6576 and

6577, Paschal's Digest, as follows: "A conspiracy is an agreement entered

into between two or more persons to commit" any offense, such as burglary.

"The offense of conspiracy is complete, although the parties conspiring do

not proceed to effect the object for which they have so unlawfully

combined."

It is insisted by defendant that the charge of the court in this case is

defective in this, that it fails to give the law as embraced in articles

6578 and 6579, Paschal's Digest. A critical examination of the entire charge

will show that it is not liable to objection on this account.

The second error assigned is that the court erred in refusing to give the

charges asked by the defendant.

The court, in its general charge, had already, among other instructions,

told the jury that, "If you believe from the evidence that defendant did, as

charged in the indictment, conspire with N. S. HAND to commit burglary, you

will convict. If you believe from the evidence that HIGGINS & GARWOOD did

employ a detective merely to discover and secure the parties they suspected

of robbing their store, and that the original intent, if any, to commit the

offense was not influenced or suggested by the detective, then the agreement

of said detective to enter a conspiracy would not excuse the defendant. But

if said detective suggested the offense, and in any way created the original

intent and agreement to commit the same, you will acquit. If either JOHNSON

or HAND did not enter into the agreement, then you will acquit."

*2 The case at bar is different from that of PIGG v. The State and of SPEIDEN v.

The State decided by this court at

its last Tyler term, which are cited by defendant's counsel. In the former

the defendant and Thomas SMITH were indicted for the theft of a horse, and

the state was required to show that the horse was taken without the consent

of the owner. PIGG and SMITH were suspected of being engaged in

horse-stealing; CHRISTIAN, the alleged owner of the horse, requested one

SNYDER to get into the confidence of the defendants and learn whether they

were horse-thieves or not; which SNYDER did. PIGG and SMITH told him that

they had CHRISTIAN's horse picked out, and SNYDER agreed with them to engage

in stealing the horse. Witness SNYDER so conducted the affair that he was

present when defendants, PIGG and SMITH, took the horse and led him out of

the stable, when they were arrested. CHRISTIAN testified that he had given

no consent that his horse should be taken, but corroborated SNYDER in the

arrangement by which the defendants were detected. The court held that it is

not consent to the taking for the owner to obtain the aid of a detective

who, for the purpose of detection, joins the defendant in a criminal act

designed by the defendant and carried into execution by actual theft; but

that, if CHRISTIAN or the detective suggested or induced defendant to steal

the horse, and, having induced such original intent, he, or the person

acting for him, acted as one of the party throughout, then the want of

consent would not be established, and the defendant should be acquitted.

And in the other case, that of SPEIDEN v. The State, the defendant was

indicted for burglary by breaking into a bank, with the intent to commit

theft. The facts in that case show that defendant had entered the bank at

the solicitation of a detective rightfully in possession with the consent of

the owner; and this court held that he could not rightfully be convicted of

burglary, no matter what his guilty intent.

In the case now before the court, it will be borne in mind that the offense

is complete under the indictment when it is shown that defendant had

actually entered into an agreement with N. S. HAND to burglariously enter

the house described in the indictment, in the manner as therein alleged, wit

h intent to commit a theft, and that the offense of conspiracy is complete

although the parties conspiring do not proceed to effect the object for

which they have so unlawfully combined. The fact of such conspiracy once

being established, the subsequent consent of the owner (or those acting for

him) for the conspirators to enter the building will not affect their guilt

in the least, unless the evidence shows that HIGGINS and GARWOOD, or the

detective employed by them, suggested the offense, or in some way created

the original ??ntent or agreement to commit the offense as charged.

The exception to the charges given, and to the refusal of the court to give

the instructions asked by defendant, are not sustained by an examination of

those charges. Those given were substantially correct, and those asked by

the defendant, and not embraced in the general charge, were ??ramed in

language more favorable to the accused than the ??tatement of facts and the

law would justify.

*3 We believe that we have noticed all the errors assigned which may aid in

any manner in another trial of the cause, when the defendant will have an

opportunity to procure the newly-discovered evidence set out in his motion

for a new trial.

The judgment is reversed and the case remanded.

Reversed and remanded.

===============

Tex.Ct.App. 1882.

TOM WATSON v. THE STATE.

13 Tex.App. 76, 1882 WL 9325 (Tex.Ct.App.)

(Cite as: 1882 WL 9325, *1 (Tex.Ct.App.))

APPEAL from the County Court of Travis. Tried below before the Hon. A. S.

WALKER.

*1 The indictment in this case was for bigamy. It charged that the

appellant, having a living wife, on the fourth day of December, 1881,

unlawfully married one Rebecca GARNER. He was convicted, and was awarded one

year's confinement in the penitentiary as punishment.

John CRAWFORD testified for the State that he knew the defendant and knew

his first and his second wives, both of whom he pointed out in court. The

defendant's first wife lives on BALDWIN's place, in BASTROP county. They

were married in April or March, 1879, and immediately commenced the

cultivation of a crop of corn. The witness heard the defendant speak of

having borrowed a horse from Charles CALDWELL, and riding to BASTROP county,

where he got married. His first wife is a cousin of the witness. The witness

then lived in Hays county, and had lived in the same neighborhood nine

years. When the witness went to BASTROP county in March or April, 1879,

defendant and his first wife were living together as man and wife, and the

defendant told the witness that he and the witness's cousin (the first wife

with whom he was living) were married. The first wife is still living, and

lives on the same place. From the time the defendant and she were married,

up to the time when the witness left, in August, 1879, they lived together.

The witness has heard of the defendant living in Hays and Travis counties.

He lived with this first wife in Hays county for a short time. The witness

first heard that the defendant had married again in April, 1882, and with

his second wife was living on Bear Creek. The witness had never heard the

defendant say that he was married to this last wife.

Cross-examined, the witness testified that he had known the defendant for

fifteen or sixteen years, and declared that he and the first wife were

married in BASTROP county. He had heard the defendant so assert the fact,

and knew that they lived together as man and wife. They separated in August,

1879. The defendant was a man of poor education and could neither read nor

write. The witness was a man of limited education, but could read a little,

and could sign his name. He identified a letter offered in evidence as one

which the defendant showed him at a camp on Bear Creek, but declared that he

did not know who wrote it. He did not write it, nor did he ever see it until

the defendant showed it to him on the occasion spoken of. The witness saw J.

CRAWFORD on the day that he first saw the letter and talked to him about it.

He told J. CRAWFORD that he did not write the letter, and that it was his

impression that it was written by the defendant's first wife. Witness told

his uncle (J. CRAWFORD presumably) that he did not know Caroline's

handwriting, and that the handwriting looked more like that of his,

witness's, wife, or of Miss MARTIN, than it did like the handwriting of the

defendant's former wife.

The witness reiterated, on re-examination, that he did not write the letter,

and that he did not know who did. He did not know that he had ever seen

handwriting similar to it. The letter was signed with the witness's name,

but the name was not correctly spelled. The name to the letter was signed

""CROFFORD," whereas his name properly spelled was "CRAWFORD." The witness's wife and

Miss MARTINDALE knew how to spell his name. The second wife was present when the

defendant showed the witness the letter. He brought the

letter to the witness from his camp. The first wife, before her marriage

with defendant, was a widow, named Catherine PEEBLES.

*2 Frank BROWN, county clerk of Travis county, being sworn, produced the

record of marriages, showing a marriage license issued to defendant and

Rebecca GARNER, December 13, 1881, and returned executed by D. C. PACE,

justice of the peace.

D. C. PACE testified that, in December, 1881, he was a justice of the peace

in Travis county, and as such performed the marriage ceremony between the

defendant and Rebecca GARNER, at Jake CRAWFORD's place, in Travis county.

Jake CRAWFORD, the witness's father, and some children, were present.

The letter referred to reads as follows:

"Nov. 18, 1881, BASTROP County.

Mr. Thomas WATSON:

It is with pleasure that I sit down to inform you that I am well, and hope

you are the same. Tom, I am sorry to tell you that your wife is dead and has

been for a week, but I suppose as you and her is separated, you do not care

to hear anything about it. Times is good here, and I wish you would come

down and see us and spend a few days and talk of old times. I have not much

to say this time, but write and let me know how you are getting along.

Hoping to hear from you soon,

I remain your friend,

JOHN CROFFORD."

Rebecca GARNER testified, for the defense, that she could neither read nor

write, but she had seen the letter used in evidence. The defendant brought

it to her, sealed up. She opened it and laid it away ten days before she and

the defendant were married. The witness's daughter looked at it, but could

read only the first part of it. Her father, William CRAWFORD, read a part of

it, and then the witness gave it to her brother. The witness, her daughter,

and her aunt took it to Mrs. BATES, who read it to her.

On cross-examination, the witness stated that she would not have married the

defendant had she known that his first wife was living, nor did she believe

that the defendant would have entered into a marriage with her if he had

known it. He told the witness of his living wife long before their marriage,

and it was understood between the two that he should secure a divorce, after

which they were to be married. The witness had no reason to doubt the

statements of the letter reporting the death of the defendant's first wife,

and made no inquiry concerning the truth of that report. The defendant had

always treated her and her children kindly. The two have not lived together

since the first rumors that the first wife survived commenced circulating.

Mary CRAWFORD testified that she was sixteen years old, and was the daughter

of the last witness. She saw the letter in evidence when the defendant

received it. It was then opened, and postmarked "Caldwell P. O., BASTROP

county." It was opened, and the witness read part of it. It was then carried

to Mrs. BATES, who read it entire in the presence of the witness.

Jake CRAWFORD, for the defense, testified that he was a brother to Mrs.

GARNER. He was illiterate, and could neither read nor write. At the request

of defendant, the witness went to BASTROP county some three years ago to

move him, and to prevail, if possible, upon his first wife to return to him.

She refused. The defendant did not quit his first wife, but was driven off

by her. She is a half sister to the witness. The witness procured the

license for the defendant to marry Rebecca GARNER, his last wife. He then

knew of the letter reporting the first wife's death, and had he not believed

it, he would not have permitted this last marriage. John CRAWFORD told the

witness that the handwriting of the letter looked like that of his wife or

Mollie MARTINDALE, and that he did not write it.

*3 MADDEN, deputy postmaster at Oatmanville, testified that he remembered

giving the defendant a letter, about the last of November, 1881, which he

supposed came in due course of mail. It was the only letter he remembered

that the defendant ever received at that office.

H. C. STILL testified that he had known the defendant for about four years.

He knew him to be very simple, but if he had any bad traits about him, the

witness did not know it.

Mary CRAWFORD recalled, stated that she was mistaken in testifying that the

letter when received bore the "Caldwell P. O." postmark. It was postmarked

"""""BASTROP County," in a circle.

John CRAWFORD in rebuttal testified that he lived within a mile of Caldwell

Postoffice. It is a small postoffice and has no stamp postmark. The

postmaster writes the postmark. The witness on cross-examination stated that

he hated the defendant.

The appellant's motion for new trial complained of the charge of the court,

and that the verdict was against the law and the evidence. The motion being

overruled, appeal was prosecuted.

An indictment for bigamy need not allege the name of the first spouse.

On a trial for bigamy, as to which the defense was an innocent mistake as to

the first wife's death, the judge charged that, if the mistake did not arise

from want of proper care, it constituted a defense, and then proceeded to

define what proper care was. Held, that this definition should not have been

given any more than of any common untechnical words.

Article 45 of the Penal Code, Vernon's Ann.P.C. arts. 40, 41, provides: "No

mistake of law excuses one committing an offense; but if a person laboring

under a mistake as to a particular fact shall do an act which would

otherwise be criminal, he is guilty of no offense." Article 46 of the Penal

Code, Vernon's Ann.P.C. art. 41, provides: "The mistake as to a fact which

will excuse, under the preceding article, must be such that the person so

acting under a mistake would have been excusable had his conjecture as to

the fact been correct; and it must also be such mistake as does not arise

from a want of proper care on the part of the person committing the

offense". Held, that it was the duty of the court to charge the substance of

the above articles, leaving to the jury to determine from the evidence

whether or not the mistake of the defendant, if a mistake, arose from want

of proper care.

R. J. HILL and T. H. WHELESS, for the appellant.

H. CHILTON, Assistant Attorney General, for the State.

WILLSON, J.

The defendant was convicted upon an indictment, the charging portion of

which is as follows: "did then and there unlawfully marry Rebecca GARNER,

he, the said WATSON, then and there having a wife then living." Exceptions

to this indictment were overruled. The exceptions were, that it did not put

the defendant upon notice of the charges against him, in this: that it does

not charge the name of the alleged first wife of the defendant. While this

indictment does not follow established precedents, still we are not prepared to say that

it is a bad indictment. It charges the offense substantially in the language of the

statute, and ordinarily it is sufficient to do this. The weight of authority is that it

is not necessary to state the name of the first wife. We are of the opinion that the

exceptions to the indictment were properly overruled.

The defense relied upon by the defendant was, that when he married the

second wife he believed that his first wife was no longer living. In support

of this defense, it was proved that the defendant resided in Travis county,

and his first wife resided in BASTROP county; that, a short time before he

married the second wife, he received a letter by mail, signed "John

CROFFORD," and purporting to come from BASTROP county, informing him of the

death of his first wife. "John CRAWFORD" (the supposed writer of this

letter) testified that he did not write it; that he lived in BASTROP county,

near defendant's first wife, and was well acquainted with defendant; that

his impression was, when he first saw the letter, that it had been written

by defendant's first wife, but he had told Jake CRAWFORD, his uncle, and a

brother of defendant's second wife, that the handwriting of the letter

looked like that of his (John CRAWFORD's) wife, or that of Mollie

MARTINDALE. The witness Jake CRAWFORD saw the letter, and being satisfied

that it was genuine, and that defendant's first wife was in fact dead, he

consented to his marriage with his sister. The second wife also testified

that she saw the letter, and, believing that it was all right, married the

defendant. It was also in proof that the defendant was illiterate-- could

neither write nor read, and was very simple.

*4 Under this state of facts, the court charged the jury as follows:

"A mistake by defendant as to the death of the first wife before the second

marriage, if such mistake did not arise from the want of proper care, will

excuse an act committed under such mistake. By proper care, which the

defendant must use, is meant such care as ordinary men would use to

ascertain the truth of a report of like importance upon which they may be

required to act. If the mistake is shown to have existed, and that it was

not caused by want of such proper care, the jury will acquit. If by such

proper care defendant, from the testimony, could have corrected the mistake,

then the mistake, if it existed, will avail nothing as a defense; but the

jury may consider the belief by defendant of his first wife's death, if such

belief be shown, in mitigation of punishment, should the defendant be

convicted."

It is insisted by defendant's counsel that the foregoing charge is

erroneous, and, after a careful consideration of the question, we are of the

opinion that the latter clause of the same, which undertakes to instruct the

jury as to the meaning of the words "proper care," is erroneous, and should

have been omitted from the charge. We do not think that the court was called

upon to explain these words to the jury. They are not technical words having

a fixed legal meaning unknown to the unprofessional minds, but are plain,

common, well understood words, as easily comprehended as any used in the

statute.

The Penal Code provides as follows:

"ART. 45. No mistake of law excuses one committing an offense; but if a

person laboring under a mistake as to a particular fact shall do an act

which would otherwise be criminal, he is guilty of no offense.

ART. 46. The mistake as to fact which will excuse, under the preceding

article, must be such that the person so acting under a mistake would have

been excusable had his conjecture as to the fact been correct; and it must

also be such mistake as does not arise from a want of proper care on the

part of the person committing the offense."

We think the learned judge should have given in charge to the jury,

substantially, the above articles, leaving the jury to determine from the

evidence in the case whether or not, under all the facts and circumstances

of that particular case, the mistake of the defendant, if he was mistaken,

arose from a want of proper care on his part. The question as to proper

care, we think, depends upon the facts in each particular case. No general

rule can be prescribed in relation to it. What would be proper care in one

case might be gross negligence in another. What would be proper care when

considered with reference to one individual might not be when applied to

another. The learned judge, in the charge under discussion, defines "proper

care" to be such as ordinary men would use, etc. Why not also explain to the

jury what constitutes an "ordinary man?" Was the defendant an "ordinary

man?" Were the jury any more competent to determine this question without

instructions from the court than they were to determine the question as to

what would constitute proper care? We think the charge of the court was

improper when applied to the evidence in this case, in so far as it

instructed the jury in the meaning of the statutory words "proper care," and

that it was calculated to injure the rights of the defendant; and because of

this error the judgment is reversed and the cause is remanded.

*5 Reversed and remanded.