|
|
||
|
Bastrop County, TX |
||
|
|
||
|
|
SUPREME COURT RECORDS PAGE 9
File contributed by Lisa Lach and
proofed/formated by Dena Stripling ================= APPEAL from the District Court of Bastrop. Tried
below before the Hon. L. W. Moore. *1 The indictment in this case charged the
appellant with the theft of two horses, the property of E. L. Norris, on the sixteenth
day of May, 1883. The penalty imposed by a verdict of guilty was a term of eight years
in the penitentiary. E. L. Norris testified, for the State, that he
lived about twenty miles west of San Antonio, in Bexar county, Texas. On the night of
May 15, 1883, he turned his two gray horses out to graze near his place, after
having worked them all that day. One of them was branded with an &, reversed,
on the left shoulder; the other with the letters cc on the left shoulder, and the device
of a heart inverted, surmounted with an upturned B, on the left hip. One of them was
belled. The witness hunted for these two animals all of the next day, when, not
finding them, he became convinced that they had been stolen, and accordingly addressed to
the several counties postal cards giving descriptions of them. After a time he
received a letter from the sheriff of Caldwell county, stating that two horses
answering the description had passed through Lockhart, going towards Bastrop. Ten days or two
weeks later the witness received a letter from sheriff Jenkins, of Bastrop county,
stating that the horses were then in Bastrop. Witness went to Bastrop immediately,
and found his horses in the possession of sheriff Jenkins, who delivered them to the
witness. These animals were taken without the knowledge or consent of the witness. The
witness never saw the defendant before he saw him at Bastrop, at the time he recovered
his horses. Mat. Luna testified, for the State, that he
lived on the Brooks Duval place, near the town of Bastrop. On or about May 20, 1883, the
defendant and another Mexican named Tomas Gonzales came to the witness's house with
two gray horses corresponding to the description given by the witness Norris. They
remained at the witness's house two or three days, during which time the witness
purchased the horse branded & from the defendant, and the other horse from Tomas
Gonzales, and received from them respectively the following bills of sale: "BASTROP, May 22, 1883. This is to certify that I have bargained, sold
and delivered to Mat. Luna one (1) gray horse branded cc on the left shoulder, and (B
turned horizontally over an inverted heart) on the left hip, about eight years old, for the
sum of $45.00. This title I monarch and defend against any person claiming the same. TOMAS GONZALES. Witness: H. C. KLEINERT." "BASTROP, Bastrop Co., May 22, 1883. This is to certify that I have bargained, sold
and delivered to Mat. Luna, one (1) gray horse, 14 hands high, 7 years old, branded
& on the left shoulder, for the sum of $40.00. This title I monarch and defend
against any person claiming the same. FERRIER GARCIA. Witness: H. C. KLEINERT." These horses the witness afterwards surrendered
to Mr. Jenkins, the sheriff of Bastrop county. The defendant told the witness
that he had traded for the horse branded & on the left shoulder, about
fifteen miles beyond San Antonio. He did not claim or sell the other horse, but was
present when Tomas Gonzales sold him to the witness. Defendant and Gonzales left the
witness's house together. The witness knew the defendant several years ago at
San Antonio. *2 W. E. Jenkins, sheriff of Bastrop county,
testified for the State, that he received a postal card from Norris, giving a
description of the horses and saying that they were stolen, and, finding them
in the possession of Mat. Luna, he seized them and notified Norris, who came to
Bastrop and got them. He pursued and arrested the defendant and Tomas Gonzales at
Giddings, Texas. The defendant introduced in evidence the
following bill of sale: "SAN ANTONIO, May 17, 1883. Know all men by these presents, that I have this
day sold to Mr. Fernando Rodriguez Garcia, one gray horse, about 14 hands high,
branded thus, & (reversed) on the left hip, sold for the sum of $25.00, twenty-five
dollars, money received to my satisfaction in presence of witnesses, title of
said horse I guarantee and defend. J. R. SMITH. Witness: FRAN'CO HERNANDEZ, NICOLAS SANDOVAL, RAMON CASAS." Norris, re-introduced by the State, testified
that when he came to Bastrop for his horses, he attended the examining trial of the
defendant and Gonzales. They exhibited on that trial a bill of sale, giving correct
descriptions of the two horses. That bill of sale was not the bill of sale exhibited
on this trial. The two bills of sale were on different kinds of paper, and bore
different dates. The first one--the one exhibited on the examining trial--correctly
represented the & brand on the left shoulder. That now introduced incorrectly
represents that brand to be on the left hip. The witness could not say that the
defendant had and produced the bill of sale described on the examining trial. It may have
been produced by Tomas Gonzales. W. E. Jenkins, recalled, testified for the State
that the bill of sale now offered in evidence was not the same that was produced
on the examining trial. The one offered in evidence before the examining trial was on
different paper and was written in a different handwriting. According to the
recollection of the witness, that bill of sale embraced both horses. Witness could not recollect
whether that bill of sale was produced by the defendant or by Tomas
Gonzales. It was not returned to either the defendant or Gonzales, but is now lost. The motion for new trial assigned as error the
refusal of the court to grant the appellant a continuance, on the showing
disclosed in the opinion of this court. A continuance, in a criminal case, should be
granted because of the absence of a witness whose testimony clearly was material to
the defense; the facts set forth in the application showing ground for a
continuance, and appearing to be probably true. Where the prosecution relies solely upon
circumstantial evidence, the court must always instruct as to the law controlling such
evidence. No brief for the appellant has reached the
Reporters. J. H. Burts, Assistant Attorney General, for the
State. WILLSON, JUDGE. On the night of the fifteenth of May, 1883, two
horses were stolen from E. L. Norris, in Bexar county. On the twenty-second day of
May, 1883, these horses were sold to one Luna, in Bastrop county. One of the horses was
sold to Luna by the defendant and the other by a Mexican named Gonzales, and they
executed bills of sale, respectively, to Luna. Defendant was indicted and convicted for
the theft of both horses. The indictment was returned into court October 17, 1883, and
the trial was had on the twenty-fourth day of October, 1883. *3 Defendant made an application to continue the
case, which was refused. This continuance was sought because of the absence of
one Ramon Casas, alleged to be a material witness in behalf of defendant, and
who resided in Bexar county, Texas. On the seventeenth day of October, 1883,
the day on which the indictment was returned into court, the defendant applied
for and obtained an attachment for this witness to Bexar county, which
attachment was returned endorsed by the sheriff of Bexar county as follows:
"Came to hand on the twentieth day of October, 1883, and not executed. The within
named person is not to be found, as he is temporarily absent from the county.
Might return at any time; and, as the writ is returnable instanter, I cannot hold
it over." In his application, defendant stated that he
expected to prove by this witness that he, defendant, purchased, in good faith, the
horse he sold to Luna from one J. R. Smith, on the seventeenth day of May, 1883, two
days after said horse was stolen, and five days before he sold the same to Luna;
and that said Smith executed to defendant a bill of sale of the horse, which
bill of sale said witness signed as a witness; and that said witness was present
when defendant purchased the horse. In all respects the application complied with
the requirements of the law, and accompanying it, and made a part of it, was a
copy of a bill of sale from one J. R. Smith to the defendant, dated May 17, 1883,
witnessed by Ramon Casas, and describing the horse sold by defendant to Luna,
and which was one of the stolen horses. There can be no question but that the testimony
of this witness was material to the defendant's defense. Were the facts set
forth in the application probably true? If so, it was error to refuse defendant's
motion for a new trial. (Code Crim. Proc., Art. 559.) There is nothing in the evidence adduced on the
trial which is inconsistent with, or which renders improbable, the claim of the
defendant that he purchased the horse he sold to Luna from one Smith. It is not
shown that he had possession of the other stolen horse, or was connected with
the theft of it. any further than that he was in company with Gonzales, who
claimed, also, to have bought it from another party. We can see no reason why it
should be held that the facts set forth in the application for a continuance were not
probably true. We think the court erred in refusing defendant's motion for a new
trial. This being a case of purely circumstantial
evidence, it was incumbent upon the court to instruct the jury upon that character
of evidence, which the court failed to do. The judgment is reversed and the cause is
remanded. Reversed and remanded. Tex.Ct.App. 1883. FERRIER GARCIA v. THE STATE. 15 Tex.App. 120, 1883 WL 8991 (Tex.Ct.App.) END OF DOCUMENT ====================== Appeal from district court, Williamson county. This conviction was in the second degree, for
the murder of James Davis, on the fifteenth day of June, 1886. A term of five
years in the penitentiary was the penalty awarded. Stated in brief, the proof shows that the
deceased, who was the step-father of Miss Mattie Bains, and the brother-in-law of the
defendant, left his old home, in Bastrop county, Texas, on the fourteenth day
of June, 1886, to remove to Bell county, taking Miss Bains and his own smaller
children with him; the party traveling in a wagon drawn by four horses. On the evening
of the thirteenth, Miss Bains sent word to her grandmother, defendant's mother, that she
did not want to go to Bell county with Davis, but wanted to take up her abode with
her. Defendant, on the morning of the fifteenth, ascertained that Miss Bains had
gone off with deceased. He, and a relative named Dunbar, followed Davis, with the
avowed purpose of taking Miss Bains back to her grandmother's, if she was
being taken off against her will, but not to interfere if she was going
voluntarily. Defendant and Dunbar overtook deceased's wagon as it was going into camp at
noon on the next day. Defendant and deceased addressed each other in friendly
terms, and, while the latter was gone with two of his horses for water, defendant
asked Miss Bains if she was going off voluntarily. She replied that she was,
and defendant remarked that he had nothing more to say. When Davis returned
with the horses, defendant asked why he did not take the children by to bid
their relatives adieu. Davis asked in reply angrily, and with an oath, if
that was why defendant followed him. Defendant replied that it was. The two then
approached each other. Defendant then stepped back, and Davis, having
nothing in his hands, continued to advance. Defendant ordered him
three times to stop. Davis continuing to advance, (though making no hostile
demonstrations,) the defendant drew his pistol and shot Davis dead. A
large butcher knife, such as it was shown by the evidence, Davis usually
carried in his belt, was found on the ground near the body, after the
homicide. Objection to irregular or insufficient manner of
presenting and entering indictment must be raised by motion to quash and
exception to denial of the motion. It cannot be taken for the first
time on appeal. In a trial for murder, the fact that a butcher
knife is found near the deceased, under such circumstances that it might well have
been dropped by somebody else, coupled with the evidence of several witnesses
that when deceased was killed he was unarmed, and that directly afterwards the
defendant, in speaking of the killing, said nothing about the knife, but
forthwith fled the country, held not to support the plea of self-defense, so as to
vitiate a conviction of murder in the second degree. The clerk of the trial court is not required to
enter upon his minutes the name of the offense charged against an accused, and
the fact that he misnamed the offense on his minute book cannot vitiate the
indictment. An indictment which concludes with the phrase,
"against the peace and dignity of the state," is not vitiated by any words
following that phrase, if they form no part of it. **583 *196 G. W. Jones and Fisher & Townes,
for appellant. Asst. Atty. Gen. Davidson, for the State. WILLSON, J. It is objected to the indictment that it does
not conclude, "against the peace and dignity of the state," and is therefore a
nullity. The original indictment is before us, and we find that the words, "against
the peace and dignity of the state," follow immediately after the charging portion of the
indictment, and on the last words used by the pleader. In the next line below these
words, and without any grammatical or other connection therewith, in a different
handwriting from that of the indictment, are the words, "A true bill," followed
immediately, and in the same handwriting, by the official signature of the foreman of the
grand jury. We hold that these interpolated words, "A true bill," do
not vitiate the indictment. They are no part of the indictment; are outside of and
wholly disconnected with it. They are no part of the conclusion of said
indictment, and in this respect the case differs materially from that of Haun v. State,
13 Tex. App. 383, as will be seen by reference to that decision. The language of
that decision may be, and we think is, too broad and unqualified, but the
conclusion arrived at with respect to that particular indictment *197 was, we still hold,
correct; for the reason that the words following the conclusion proper were
connected with said conclusion in the same sentence, and manifestly formed a portion
of said sentence; and therefore the indictment upon its face did not conclude as
required by the statute and the constitution. We are of the opinion that, when
the indictment upon its face shows the pleader's conclusion to be
"against the peace and dignity of the state," these words forming a complete sentence, no
words following thereafter, and not forming a part of said sentence, can vitiate the
indictment. Another objection to the indictment is for the
first time presented in this court. It is that it affirmatively appears from the
record that the said indictment was not presented in open court by the grand jury.
The record shows the file number of the cause in the district court to be 706;
the charge in the indictment being murder. The entry upon the minutes of the said
court of the presentment by the grand jury of indictment No. 706 names the
charge in said indictment, "An assault with intent to kill." Upon its face the
indictment shows that it was presented in the district court by a legal grand jury.
This recital in the indictment must be presumed to be true until it is shown to be
otherwise. It devolves, therefore, upon the defendant to show that the indictment
was not in fact presented in court. How and when does the law permit him to make
such question? We answer, by exception to the indictment, which exception must be made
before a plea of not guilty is entered. It cannot be entertained when made for
the first time in this court. Hardy v. State, 1 Tex. App. 556; Alderson v.
State, 2 Tex. App. 10; Strong v. State, 18 Tex App. 19; De Olles v. State, 20
Tex. App. 145. But even if the objection now for the first time
urged had been made in limine in the trial court at the proper time, and in
the proper manner, we do not think it would have been a valid objection to
the indictment. It is only required that the style of the action and the
file number of the indictment shall be entered upon the minutes. Code Crim.
Proc. art. 415. In this instance this requirement was fulfilled. It was
not essential that such entry should name the offense charged in the
indictment. Steele v. State, 19 Tex. App. 425. Not being essential to the
sufficiency of the entry to name the offense charged, it was an unnecessary act
on the part of the clerk to do *198 so,and should not be held to vitiate the
indictment, although the offense named in said entry is not the offense charged
in the indictment. It is earnestly contended by counsel for
appellant that the evidence is insufficient to sustain the conviction, in this:
that the evidence in support of the plea of self-defense is at least cogent
enough to raise a reasonable doubt of the **584 guilt of the defendant. In this view
of the evidence we do not agree with counsel. We do not think the facts
show, or even strongly tend to show, that character of self-defense which would
either justify or reduce the homicide to manslaughter. If the deceased, at
the time he was shot, had been advancing upon the defendant in an angry manner,
armed with a butcher- knife, then, indeed, would defendant's theory of
self-defense be established. But, unfortunately for the defendant, the evidence
does not disclose such a state of the case. On the contrary, all of the
eye-witnesses to the transaction testified on the trial that the deceased was
unarmed at the time he was shot by the defendant. They were in positions where they
could and did see the deceased at the time, and they saw no knife or other
weapon on or about his person. The only evidence which even remotely tends to
prove that the deceased was armed with a butcher-knife is that such a knife was
found upon the ground where the homicide occurred a short time after the
difficulty, and that this knife belonged to the deceased. How, when, or by whom the knife
was placed upon the ground is not disclosed. Deceased was at the time of the
occurrence traveling in a wagon with his family, consisting of several small
children, and had stopped to camp for dinner. These children were around the
wagon, and may have had and dropped the knife where it was found. Deceased may
himself have dropped it before the difficulty occurred. After defendant had shot
deceased, witness Dunbar said to defendant: "You have killed Davis!"
Defendant replied: "Yes; he ought to have kept off of me." Nothing was said by
defendant at that time about the deceased having a knife. If in fact deceased had been advancing
upon the defendant with a butcher-knife in his hand, and defendant had
seen that he was thus armed, it is passing strange that he did not mention the
fact to Dunbar at the time of said conversation, and call the attention of that
witness to the knife. Instead of doing so, however, he mounted his horse, and
fled the country, and avoided trial for a number of years. *199 As to the charge of the court, it is full
and correct, and fair and liberal to the defendant, presenting clearly the law
applicable to every phase of the case made by the evidence. We are of the opinion that there is no error in
the conviction, and the judgment is affirmed. Tex.Ct.App. 1887. ROWLETT v STATE. 4 S.W. 582, 23 Tex.App. 191 END OF DOCUMENT ===================== Appeal from district court, Bastrop county; H.
TEICHMULLER, Judge. On the 19th day of October, 1889, an indictment
was preferred and returned by the grand jury of Bastrop county against Ike Wilson,
Runnels Williams, Bob Thompson, Jesse Johnson, O. W. Wicks, York Aldridge,
Fountain Moore, Ben Clark, George Jones, and Milton Nobles, for the murder of
George Schoeff and Alex. Nolan, in said county, on the 13th day of June, 1889. On
the 6th day of November, 1889, defendants were duly arraigned, and, plea of not
guilty being entered, a severance was had upon motion of defendants, and the
defendants O. W. Wicks, George Jones, and Milton Nobles, appellants herein, were
placed upon trial together, but separately from their co-defendants. Being
convicted of murder in the second degree, the punishment of appellant O. W. Wicks
was fixed at 20 years' confinement in the penitentiary, and that of
appellants George Jones and Milton Nobles at confinement in the penitentiary
for 17 years each. Wicks, a negro, was justice of the peace, before whom
the case of State v. Addie Lytton, for assault and battery, was set for
hearing on June 13, 1889. The white people, fearing that Lytton would not be
accorded a fair trial, went armed to the place of trial. When the case was
given to the jury, Lytton walked out of the house, and it was then that
the firing commenced. The material part of the testimony of West Craft,
for the state, was as follows: "I was at Cedar Creek on the day of the
shooting. I got there about 2 or 2:30 o'clock. I got down off my horse, and was
talking with Jesse Johnson and some boys. While sitting there, Cuffie
Williams came up, beckoned, and called me. I got on my horse, started towards
him, and we met. As we started off, O. W. Wicks, defendant, called me, and told
me he wanted to see me. Wicks was getting out one of the windows on the
side of the court-house next to Dick Lemuel's. I went to him, and he
came up to me, and asked me where I was going; I still being on my horse. He
whispered to me, and told me not to go away, and then made some
remarks about the white people being there. In the conversation, Wicks said for
me not to go away; that he had me deputized to help protect the court;
that we would bring the thing off directly, and that he wanted me to
stay there, and wanted the negroes to hang together, and 'kill as many of
the devilish white folks as they do of us.' Cuffie Williams and I then
started off towards Givensville. I heard Ike Wilson halloo: 'Halt,'
or 'Come back.' About that time, I looked back, and saw Ike throw up
his gun; and a fire was made, but I cannot say who made it. The shooting
then all began, and I shot, too. I shot in every direction. On the
first Saturday after the difficulty, I was arrested at Bastrop, and
Wicks was at the court-house when I was brought down there. Mr. Fowler was
acting for the state, and fixed up the papers against me. When first arrested, I
requested to have a private talk with Mr. Fowler; and Wicks was there, or
came in there shortly afterwards. While in the sheriff's office talking with Mr.
Fowler, Wicks came in, leaned over the table, and whispered to me, and told me
not to give him away, or tell anything on him; and I told him I did not
know anything to tell. When he left, Mr. Fowler asked me what he said, and I
told Mr. Fowler." The theory of the defense was that the whites had
threatened to interfere with the officers of the court in the discharge of their
duties, to rescue Addie Lytton, whose trial for assault was pending before the
defendant Wicks, to accomplish their purpose by force, and to kill Ike Wilson
if necessary, etc.; that they congregated in large numbers, several of them
being armed, and took possession under a mesquite tree a short distance from the
front of the house; that, when the jury in Lytton's case retired to
deliberate on the verdict, Lytton left the house; that Wilson, the constable,
followed, and called to him to await the verdict of the jury; that the whites
then rose in mass at the cedar tree, handed Lytton a gun, and opened fire on
Wilson; and that Wilson did not return the fire until he had been fired upon at
least twice. On the trial of certain negroes for the murder
of certain white men, a white man testified that a negro had told him
that he heard one of the negroes say that they were going to kill off the
whites. Held incompetent, as hearsay, and prejudicial to defendants. On the trial of negroes for the murder of white
men, testimony as to statements made by some of the negroes, not on trial, in
the absence of defendants, was hearsay as to defendants. On the trial of certain negroes for the murder
of certain white men, testimony as to statements made by some of the negroes,
not on trial, in the absence of defendants, was hearsay as to defendants, and
incompetent, in the absence of proof of a conspiracy to murder between
defendants and those who made the statements, and that the statements were made
pending the conspiracy, in furtherance of the common design. A combination or conspiracy must be established
before the acts, declarations, or confessions of one alleged conspirator can be
given in evidence against another. Where the state introduces evidence of
accomplices, the refusal of the court to charge that a conviction cannot be had on the
uncorroborated testimony of accomplices is ground for reversal. On the trial of certain negroes for the murder
of certain whites killed in a fight between whites and negroes at the trial of one
L., before a negro justice of the peace, the theory of the state was that the negroes
started the difficulty in pursuance of a previously formed conspiracy, and there was
testimony tending to sustain this theory, as well as that of defendants that the whites
started the trouble pursuant to a previous plan to interfere with the court. Held
that, for the purpose of showing that the whites went there with innocent
motives, which would tend to show that they were not the assailants, it was a proper
question for the state to ask one of them why he went there armed, and that his
answer, "We went there to see that no harm came to L.," was competent. **749 *462 G. N. Jones and H. M. Garwood, for
appellant. Asst. Atty. Gen. Davidson, for the State. WILLSON, J. O. W. Wicks, George Jones, and Milton Nobles,
and several others, were jointly indicted for the murder of George Schoeff and
Alex. Nolan. The three above- named defendants severed from their co-defendants, and
were tried jointly. All three of them were convicted of murder in the second
degree, and from that conviction jointly prosecute this appeal, assigning several
errors. The first assignment of error is that the court
erred in admitting the *463 testimony of the witness W. R. De Bardeleben, as
per bill of exceptions No. 1, which bill of exception recites as follows:
"W. R. De Bardeleben, a witness for the state, was asked the question by the
prosecuting attorney, 'What was the reason you went down to the trial of Addie
Lytton, the scene of the difficulty, with a gun?' To which the witness replied: 'We
went there to see that no harm came to Addie Lytton, and because, several days
before the difficulty, Alex. Nolan , now deceased, had told me that he (Alex.
Nolan) had heard Ike Wilson tell Robert Thompson that he was going to summon a lot of
men to the court, and kill off white men, and that he was going to arrest Addie
Lytton this time, and carry him to Bastrop.' This witness further stated that Addie
Lytton told him (the witness) that he (Lytton) had heard that Ike Wilson had threatened
to kill him, and that he was afraid that Wilson would mistreat him at
the trial; and that he (De Bardeleben) had heard that Ike Wilson had arrested an old
white man down on the river, and tied him, refused him bail, and walked him to Bastrop. To
which question and answer defendants then and there objected for the reasons: (1)
Same was hearsay; (2) irrelevant; (3) the declarations of Ike Wilson or Robert
Thompson were not admissible against these defendants, or either of them, because the
declarations were not made in pursuance of a common design, and no conspiracy had been
proved between these defendants, or either of them, and Ike Wilson and Robert
Thompson, or either of them. These objections were then and there overruled by the
court, whereupon defendants, by counsel, excepted, and now here present their
bill of exceptions, and pray that same be signed, sealed, and made a part of the
record." In approving said bill of exception, the trial judge adds thereto an
explanation that said testimony was offered and admitted for the sole purpose of
showing the motive of said witness in going armed to the scene of the difficulty.
It is sometimes relevant and material to show the motive actuating the
conduct of a witness; and, in the case now under consideration, there can be no
question but that it was material for the prosecution to show, if it could, that the
witness, and other white men who went armed to the scene of the tragedy, went for
a legitimate, innocent purpose, and not for the illegal purpose of interfering
with the court or its proceedings, or with the execution of the law. There was much
conflict in the testimony as to which side, the whites or the blacks, began the
difficulty which resulted so fatally. On the part of the prosecution, it was and is
contended that the blacks brought on the fight in pursuance of a previously formed
conspiracy. On the part of the defendants, it was and is contended that the whites brought
on the difficulty in pursuance of a previously formed conspiracy. There is evidence
tending to sustain both these theories. In this state of case, it was relevant and
material for the prosecution to show that the whites, in going armed to the place of the
difficulty, were influenced *464 by innocent motives. Proof of innocent motives on
their part would be a circumstance tending to support the theory that they did not
bring on the difficulty, but were the assaulted party. We are of the opinion,
therefore, that the question propounded to the witness De Bardeleben was legitimate and
proper. A portion of said witness' answer to said question, to-wit: "We went
there to see that no harm came to Addie Lyton," was admissible. But the remainder
of his answer to said question was purely hearsay, and was not admissible for any
purpose. When viewed in connection with the facts of the case, this illegal
testimony must have operated prejudicially to the defendants; and its admission was
therefore material error. Proof of motive, like proof of any other fact, must be made by
legal testimony. The second and third assignments of error call
in question the correctness of the rulings admitting certain testimony of the
witnesses Gus Randel and Joe Jackson as to statements made by Robert Thompson and
Runnels Williams, co- defendants in this prosecution. These statements were not made in
the presence of the defendants on trial, and were hearsay as to them, and
inadmissible against them, unless a conspiracy to commit murder existed between said
Thompson, Williams, and these defendants, and unless said statements were made
pending such conspiracy, and in furtherance of the common design. As we view
the evidence before us, the testimony of said witnesses Randel and Jackson
as to the statements made by Thompson and Williams should not have been
admitted, and its admission was material error. There are several assignments of error relating
to supposed defects in the charge of the court. No exceptions were saved to
the charge; and, upon a careful examination of the same in the light of
the objections urged against it, we think it is an able, clear, and correct
exposition of the law applicable to **750 the facts of the case, and free from
any material error except in one particular, which is, that it does not instruct
the jury as to the rules governing accomplice testimony. Such instruction was
demanded, we think, by the testimony of the state's witness West Craft. Said witness, by
his own testimony, showed himself to be an accomplice in the killing of the white
men; and his testimony was prejudicial to the defendants, and especially so
to defendant Wicks. Defendants requested a proper instruction as to accomplice
testimony, which the court refused to give; and in this, we think, material error
was committed. We deem it unnecessary to discuss other
assignments of error, as some of the matters complained of may not occur on another
trial, and we find no material errors except those we have mentioned; and
because of which material errors the judgment is reversed, and the cause is remanded. Tex.Ct.App. 1890. WICKS ET AL. v STATE. 13 S.W. 748, 28 Tex.App. 448 END OF DOCUMENT =========== Appeal from district court, Bastrop county;
Lafayette Kirk, Judge. Aleck Brown was convicted of murder in the first
degree, and appeals. Affirmed. On a trial for murder, evidence that the husband
of deceased told defendant that he (defendant) had killed deceased, and that
defendant made no reply, was competent. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, the affidavit
alleged that the blood stains were from a squirrel which he had dressed on the
morning preceding the homicide. Defendant's daughter testified that a squirrel
had been given her on that morning, but that it was already dressed, and
this testimony was corroborated by the person who gave it to her. Held, that the
continuance was properly refused. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, and the murder
occurred in October, and the application was made in January following, no
sufficient diligence was shown to warrant the granting of a continuance. Where the allegations in a bill of exceptions
are contradicted by a statement of the court annexed to the bill, such statement
will be held to correctly present the matter in issue. Under Code Cr.Proc. art. 377 [Vernon's
Ann.C.C.P. art. 358], providing that any person, before the grand jury has been
impaneled, may challenge the array, or any person presented as grand juror, and in
no other way shall objections to the legality of the grand jury be heard, and
that any person confined in jail shall, on his request, be brought into
court to make such challenge, the provision that such person make such request is
mandatory; and, unless he does make such request, he cannot afterwards object
that he was not allowed an opportunity to challenge the array. Defendant had, prior to the homicide, had
several quarrels with deceased, and on the night of the homicide was seen standing
at her gate, quarreling with her. Witness heard four blows struck, and heard
deceased scream after the first blow. Deceased's head was chopped to pieces by an ax,
and defendant, when arrested, had numerous blood stains on his clothes, which
he accounted for by saying that it was blood from a squirrel which he had
dressed; but this was controverted by his daughter, who testified that the squirrel
had been given to her already dressed. Held sufficient to support a conviction
of murder in the first degree. The evidence not raising the issue of
manslaughter, a charge thereon need not be given. Under Vernon's Ann.St. Const. art. 4, § 8,
providing that the governor may convene the legislature on extraordinary occasions, and
that his proclamation shall state specially the purpose for which it is convened,
and article 3, § 40, providing that the legislature so convened shall not legislate
on any other subjects than those designated in the proclamation or presented to
them by the governor, he need not define subjects of legislation with precision;
and a proclamation authorizing the reapportionment of the judicial districts or the
entire state, by implication, authorizes all such legislation on that subject
as may be deemed necessary by the legislature. The caption of an act creating a new judicial
district need not state the different counties constituting such district, nor that
one of the counties composing it was transferred from some adjoining district; the
omission of such statements therein not being in violation of Vernon's Ann.St.
Const. art. 3, § 35, providing that no bill shall contain more than one subject, which
shall be expressed in its title. A verdict in civil, as well as in criminal,
cases, may be lawfully received and entered on Sunday. **596 The following is the statement of facts. *121 J. F. Nash, witness for the state, being
duly sworn, testified as follows: "I hold the position of marshal of the town of
Bastrop. I heard of the killing of Jane Wilkins, who was Oliver Wilkins' wife, on the
night of October 15, 1892. It occurred in the town and county of Bastrop, in the state
of Texas. It was some time about ten o'clock when I heard of it. When I got there
I found the body laying in the yard, between the two doors on the south side of
the house. It was lying on the face, with the hands under it. There were two deep
gashes in the head, and one in the shoulder. There was an ax lying beside the body,
and covered with blood. There was blood on the ground around the body, and
blood on the wall of the house near the body, as high as five feet from the
ground. There was also a bloody ax lying on the ground, near the body. Ben
Holiday lives in the southwest corner of the block on which the Wilkins house
is situated. Darcas Gage lives on the northeast corner, and the Wilkins house
is on the northwest corner. Ann Morrison and her husband, Frank Morrison,
live across the street from Oliver Wilkins,--directly north. I think the
street is about fifteen feet wide, and Morrison's house is some ten feet from
the street. Oliver Wilkins' house faces south. It is about sixty or seventy
yards from deceased's house to Ben Holiday's. It is about seventy-five to
one hundred yards to John Kerr's from Oliver Wilkins' house. There *122 was some
blood on a top plank of Wilkins' yard fence, south of the gate, made by finger
prints. The finger prints, in blood, were about two inches below the top
edge of the plank, and the plank was broken. Aleck Brown, the defendant,
was arrested some time in the summer before the killing occurred, for
disturbing the peace; and he pleaded guilty, and paid part of his fine, and
worked the rest out on the street. He was charged with disturbing the
peace." Cross- examined: "Oliver Wilkins, the husband of Jane Wilkins, the
deceased, made the complaint against Aleck Brown for disturbing the peace. The body
of Jane Wilkins was found on the south side of the house, a few feet from the
door of the main room, nearest the door of the east room. This east room is an old room,
not used much. There was nothing in it. The feet were directly under the eaves of
the house. The head was directly south, as though she had been standing with her
back to the wall. I don't think it was over five minutes after I heard of the
killing until I got there. There were a good many there when I got there. Aleck Brown,
John Kerr, Ben Holiday, and Aunt Darcas Gage were there when I got there. Aleck
Brown went after Oliver Wilkins, the husband of the deceased. I think he went
after him of his own accord. When Oliver got there, I noticed him, and he seemed
very much excited. He went and got his gun, and went out in the garden. Aleck
**597 Brown lives 200 yards or more from Wilkins' house,--a little west of
south of Wilkins' house. The blocks are divided into squares of three-acre tracts.
Oliver Wilkins' house, where deceased was killed, is in the northwest corner
of one three-acre block, and Darcas Gage's house is near the southeast corner
of the same block, and about 45 yards distant. Frank Morrison's house, where
Ann Morrison lives, is on the block immediately north of Oliver Wilkins'; and
Ben Holiday's house is on the same block the Wilkins house is on, and in the
same southwest corner. Dally Nunn's house is on the same block with Frank Morrison's
house, and in the northeast corner of same. Kerr's house is a little south of east
from Wilkins' house, and between 75 and 100 yards distant. Aleck Brown's house is
a little west of south from Oliver Wilkins' house, and about 200 yards distant. In
going the most direct route from Oliver Wilkins' house to defendant's, you would
pass by the Ben Holiday house. In going from the Ben Holiday house to the Taylor
house, in the most direct route, you would pass by Oliver Wilkins' house. Maria
Gage lives about one-quarter of a mile from Ben Holiday's house,--a little east of
north. These three-acre blocks are surrounded by streets. Ben Holiday's house
is the only one you would necessarily pass in going from Oliver Wilkins' to
defendant's by the most direct route. Immediately north of defendant's house is an
inclosed three-acre block, with no houses or improvements on it." *123 The following is a correct plat of the
grounds and houses, and was introduced in evidence by the state: Darcas Gage, for the state, being sworn,
testified as follows: "I am the mother of Jane Wilkins, the
deceased. The first time I knew Jane was dead, Ann Morrison came to my house, and called me,
and said, 'I think one has killed or hurt Jane.' I went up there, and found her lying
on the ground, with her head cut open, and a bloody ax lying near her. I
screamed, and kept a- screaming. No one came, and I went back, and put on my clothes.
When I came back, John Kerr came. His nephew, Walter Wheeler, came with him, and
shortly afterwards Aleck Brown came, and he stooped over Jane, and said: 'Yes;
sure enough, she is dead.' Aleck said to John Kerr, 'Let's put her in the house.'
Kerr said, 'No.' Aleck walked off, put his elbows on the fence, and leaned his
head on his hands. I said, 'Who will go after Oliver Wilkins?' and Aleck said
'I'll go.' Before cotton-picking time, Aleck and Jane had trouble, fussing and
quarreling. Aleck was frequently at Oliver Wilkins', both in the day and at night,
while Oliver was absent, and no one at home." Cross-examined, witness
testified: "Ann Morris called me three times. I was asleep when Ann called me. When Oliver
came up, he said, 'There *124 is my poor wife.' After Ann Morrison called me, I went
right up, in my night linen. I put my hands on her head, and I thought she said,
'Ma.' The body was still warm. I screamed, and kept hollowing, 'Some one has
killed my poor child! I went back, and dressed. I don't think it took me fifteen
minutes. I went just as quick as I could. Jane Wilkins married Tobe Cook's father
the first year of freedom. Aleck Brown was then only a baby." Re-examined by
the state, Darcas Gage testified: "About four months before the death of
deceased, the defendant and deceased were at Oliver Wilkins' house, quarreling, and I went
to them, and tried to stop it, and defendant started off, and then stopped, and
picked up a big stick of wood, and threw at deceased, and hit the fence; and I
said,--'Aleck, I am going to make your pocket blue for that;' and he said, 'God
damn you! I will make your heart bleed in less than six months,' and then left.
Oliver Wilkins' family consisted of only himself and wife, and a little five or
six year old boy, and no one lived at his place except this family." J. F. Nash recalled for the state testified: He
arrested the defendant on this charge on the night of the murder. Very shortly
after witness "got to Wilkins', being shortly after ten o'clock, he had on no
hat or coat or overshirt, and only a clean undershirt on the upper portion of his
body. The sleeves he had on when arrested had some spots of blood on them at the
time he was arrested. I went that night to defendant's house, and found a
white straw hat and a pair of pants of defendant's, both of which had some spots of
fresh blood on them; but I did not notice the blood on the hat and pants of
defendant until the next morning, but noticed it on the shoes that night. The blood
on the hat was a small spot on the under side of the brim, and a large spot on
the band, and there were large spots on his shoes. The blood has faded away
some, but I can see it on the hat and pants and shoes now. The deceased had been
struck three times in the head, and once in the shoulder, with the ax, or some
sharp, cutting instrument. The wounds were all deep ones, and the head was cut
to pieces, and had to be tied up for burial." Cross-examined, the witness
J. F. Nash testified: "The blood is plainer **598 now on the hat band than it is
now on the shoes and pants. When I first saw it, it was red, and looked like
fresh blood. I could not tell the difference between blood put on the clothes at
10 A. M. and 7 P. M." John Kerr, for the state, being sworn,
testified: "I live a little distance from the house of Jane Wilkins, the deceased. About
ten o'clock on the night Jane Wilkins was killed, I heard Aunt Darcas, the
mother of deceased, screaming. I ran up there. When I got there, there was no one
there but Jane's mother. The deceased was lying in a pool of blood, dead, and
a bloody ax was lying near her. Her head was cut all to pieces with the ax,
and I joined the pieces of her head together with my hands, and there was
nothing holding together but a piece of skin. Aleck *125 Brown was the fourth
man there. Darcas asked Aleck to go and get Oliver. When Oliver got there, he
walked around the yard, wringing his hands, and said to defendant, 'Aleck, you
have killed my wife,' and defendant made no reply, and walked off. When Aleck Brown
came, he said, 'What's the matter?' It was ten o'clock, by my clock, when I left
home. When I got there, about three minutes afterwards, I heard Darcas scream."
Re-examined: "The defendant had no hat on his head there that night, and he was the
only person there I saw without a hat on his head. I was there the whole time
defendant was there that night, and he never inquired anything about who
committed the murder, or who was suspected with it." Oliver Wilkins, being sworn for the state,
testified: "I am the husband of Jane Wilkins, the deceased. I last saw her alive on
October 15, 1892, about four o'clock in the afternoon. From sundown until Aleck Brown
came after me to tell me of my wife's death, I was at the white folks' gambling
joint at the Home saloon. John Majors, Warren Fleming, and Joe Sims, and
others, were there. I went at once to go to the market to borrow fifty cents, and at
this time also went to the negro joint, and was gone not over ten minutes. I went out
only one other time, to go to the saloon, a few feet from the white folks' joint,
to get a drink of whisky, and returned as soon as I got the drink."
Cross-examined: "When Aleck Brown came in, he said, 'Oliver, somebody has killed your wife
with your own ax.' I think I got to the house in about fifteen minutes before
Aleck got there. When I got there, I said, 'Ain't it a pity my poor wife is here,
dead?' I got my gun, but there was no load in it, and it wouldn't shoot,
anyhow, for the breech pin was out. I kept my ax under the house, with the handle
lying straight with the side of the house. You could not see it without stooping
down." Re-examined: "I was not at home any time that night between sundown and
the time I was informed of the death of my wife. I gave Mary Brown, daughter of
defendant, a squirrel on the day of the death of my wife. The squirrel was
dressed and cleaned on the day I gave it to her." George Davis, being sworn for the state,
testified: "I am sheriff of Bastrop county. I examined the hat and shoes and clothes
referred to by the witness J. F. Nash, and saw the spots of blood on them. I
examined the hat and shoes and pants the next morning after the murder. The blood
was fresh, red blood." H. N. Bell, being sworn for the state,
testified: "I examined the spots of blood on the hat and pants and shoes of the
defendant on the morning after the murder, and the blood was red and fresh." Pearson Hill, being sworn for the state,
testified: "A few minutes before nine o'clock on the night Jane Wilkins was killed, I
met Aleck Brown at Dally Nunn's corner, which is the northeast corner of the
block north of Oliver *126 Wilkins' house, I said: 'Hello, old boy! Where are you going?'
He said, 'I am only walking around.' We talked a short time about the
supper, and about the folks passing up town, when I told him I must be going, and bid
him good night." Cross-examined: "He had a white straw hat in his hand when
I met him. I think he had on an old pair of rickety-looking brown jeans pants. Where
I met him was northeast of Oliver Wilkins', and Aleck lives southwest from
Oliver's. Aleck said he believed he wanted to go up town. I told him not to go up
there; the negroes were fussing in that joint, and some one had to go to hell
out of that hole, and he had better keep away. I said: 'I must be going. I promised
my wife to be home early tonight. If I don't go, I will have a fuss on my hands.'
Aleck laughed, and said: 'Yes, that's so. We do sometimes get those on our hands when
we go home late.' When I bid him good night, Aleck went west, and I went east.
Immediately after I left defendant, and went about one hundred yards, and crossed the
railroad, the town clock struck nine. When I first saw defendant, he was coming from
between two seed houses on the railroad reservation near Dally Nunn's corner." Dally Nunn, being sworn for the state,
testified: "I live northeast from Oliver Wilkins' house. On the night Jane Wilkins was
killed, I heard Pearson Hill and Aleck Brown on the north side of my house,
talking. It was about nine o'clock. About an hour afterwards, I heard Aunt Darcas
scream." Ann Sims, being sworn for the state, testified:
"In the spring of 1892 I went to Aunt Jane Wilkins' house. Aleck Brown, the
defendant, was there, and she and Aleck were quarreling and fussing, and Aleck
called her a damned bitch. Aleck was cursing, and Jane was hollowing. At
another time after this, I was passing by Wilkins' house, and heard defendant and
deceased quarreling, and I heard the deceased say, 'I will not do it,'
and the defendant then said to the deceased that he would kill her. He said,
'Nigger, I will show you. I will kill you.' This was at night, and there was no one
there except defendant and deceased. I have heard Aleck Brown curse Oliver Wilkins,
too." Tishie Kerr, having been sworn for the state,
testified: "About 9:30 o'clock on the night that Jane Wilkins was killed, I **599
heard four or five licks struck, and heard Jane scream. The licks sounded like
some one cutting wood. There wasn't five seconds between the licks. I live at
John Kerr's. The licks sounded like they were at Wilkins' house, and I
recognized deceased's voice, in a scream, following immediately after I heard
the first blow, and heard the scream only one time. The voice was a
scream, as if in distress." Ben Holiday, being sworn for the state,
testified: "I live south of Oliver Wilkins' about fifty or sixty yards. On the
night of October 15, 1892, I went to town at the first of dark, and came
back in about twenty minutes. *127 When I came back, Aleck Brown, the
defendant, was talking with Jane Wilkins, the deceased. He was standing on the
outside, and she was on the inside, of the yard fence of Oliver Wilkins'
place. My little boys, who had gone up to the Taylor House, got home about half
an hour, or may be three- quarters of an hour, after I got back from town.
I live on the most direct route from defendant's house to Oliver Wilkins',
and in going to the Taylor House, by the most direct route, from my place,
you would have to pass Oliver Wilkins' place. Maria Gage lives about
one-quarter of a mile southeast from where I live; and, at the time of the death
of Jane Wilkins, Maria Gage owed me a dollar, which she promised to pay on
that day, but did not pay on that day. My house is very near the sidewalk,
and on the night of the murder there was a lamp burning with a full light until
a few minutes before I heard Aunt Darcas screaming, when she found her
daughter dead. There is one door and one window of the house on the west side of
the room the lamp was in that night." Lloyd Holiday, being sworn for the state,
testified: "About two or three hours after dark on the night of the murder of Jane
Wilkins, I and my brother left to go to the Taylor House, and on our return came
back by Jane Wilkins' house. The defendant, Aleck Brown, was there by the
fence, talking to her. They said 'Yes' about something. I was gone about half an
hour. She was inside of the yard fence, and he was on the outside. They were
near the gate, on the west side of the house." Ann Morrison, being sworn for the state,
testified: "I live on the opposite side of the street from Oliver Wilkins'. The
street is about thirteen yards wide. Oliver's house is about ten feet from the
street, on the south side, and mine, about the same distance, on the north
side. Oliver's house fronts south, and mine east. On the night of the
murder, at about eight o'clock, or after, I saw Aleck Brown standing on the
outside of Oliver's yard fence of Oliver's house, at or near the northwest
corner. Jane Wilkins, the deceased, was standing on the inside, and they were
talking to each other. They were close together, and one each side of the fence.
They were quarreling, I don't know what about. They stood there quarreling for
several minutes. I heard him say something about money, and I heard Jane
say she was through with him, and would have nothing more to do with him. She
left, and immediately went in the house, and defendant immediately opened
the gate, and went in, and left the gate open. He followed Jane immediately into
the house. I heard some noise in Jane's house. It sounded like some persons
fussing and quarreling. This rumpus was kept up several minutes, and I could
not tell what was said by the persons fussing and quarreling. I went out to my
yard fence, and I could tell then that the parties were outside, and south of
the house, fussing and quarreling. I heard Jane say, 'You're a liar.'
Then I heard the defendant, Aleck Brown, say something in *128 answer, but
could not tell what it was. Then I heard about four licks struck, and heard
Jane scream after the first lick was struck, but heard her voice no more
after I heard the second blow. After I heard the blows, and heard Jane scream,
I saw some one run and jump over the fence right south of the gate, and run
down by Ben Holiday's, in the direction of his house. I heard a plank of
the fence break as he got over the fence. I have seen the defendant there
frequently, both day and night, while Oliver Wilkins was not at home. I heard
her say, 'You're a liar.' Then I heard him say something, and then she said,
'It's a lie,' and he said something else, and she said again, 'You're a
liar.' I went in the house while they were standing at the fence. I stayed a
little while, and when I came out I could hear them in the house, talking,
quarreling, and sounded like they might be fighting, and I recognized it as
Aleck's voice. They kept this up until I went in the house again. I stayed a few
minutes, and when I came out they were out in the yard. I could hear them
quarreling and talking in the yard. I could not understand all the defendant said.
He talked low, but I could understand Jane. She called him a liar three
times. I went back in my house the third time. Not long after I went in, I
heard the blows struck, and the screaming of deceased; and then I heard some one
run across the yard, and saw him jump over the fence, and heard the fence
break as he got over. I could not tell how he was dressed. I then went
in my house, and stayed about half an hour, I think, and then I called Jane,
but she did not answer. I then went and called Aunt Darcas, her mother, and she
came, and found Jane dead, with her head split to pieces, with a bloody ax
by her side. The defendant and deceased had had quarrels before, and at one
time he bit one of her fingers nearly off. I have known the defendant,
Aleck Brown, ever since he was a baby. (And the witness points him out, and
identifies him in open court, before the jury, and says she is positive he is the man
who was engaged in the conversation and quarreling with the deceased on
the night of the murder.) I heard the conversation, and recognized his
voice. This all occurred in the town and county of Bastrop, in the state of
Texas, on or about October 15, 1892." Jo Sims, being sworn for the state, testified:
"I know where Oliver Wilkins was on the 15th of October, 1892, from six
o'clock P. M. until Aleck came to tell him of the death of his wife. He was in the
**600 gambling house, a few feet in the rear of the Home saloon from six
o'clock P. M. on said day until I left the gambling house. I left the saloon
about 8 o'clock, and, when I returned, Oliver was gone to the scene of the
killing." Step Smith, being sworn for the state,
testified: "Oliver came to the gambling joint near the Home saloon six P. M. the night
Jane was killed, and never left there at all during the time until Aleck came
after him, except once to go into the saloon, a few feet distant, to get him
a *129 drink. He went to the saloon, got his drink, and immediately returned to the
gambling house, and remained there." Warren Fleming, being sworn for the state,
testified: "Oliver Wilkins was at the White joint in the rear of the Home saloon on
the night of the killing of Jane Wilkins, from a little after six o'clock until
defendant came after him. He left only one time during that time to go into the
saloon, a few feet distant, to get him a drink, and was gone five or ten
minutes, --can't be certain,--and returned and remained there until defendant came
after him." John Majors, being sworn for the state,
testified: "Oliver Wilkins, on the night of the killing of Jane Wilkins, came to
the joint in the rear of the Home saloon, and stayed there from about six
o'clock P. M. until the defendant came and told him of the death of Jane Wilkins.
He was gone only once during said time, and then went into a saloon, a few
feet away, to get a drink, and immediately returned. Oliver was betting, and I
was dealing. Oliver was gone after the drink about five minutes,--not over
ten minutes, if that." Cross- examined: "I was busy with my game. I did not pay
much attention to the time, but it did not seem to me more than ten minutes. He had money
when he came back, and went to betting on the game." Josh Gage, being sworn for the state, testified:
"On the night Jane Wilkins was killed, my mother sent me down to Ben Holiday's
to tell him, if he would come up to our house, she would pay him that dollar
she owed him. When I got nearly to Ben Holiday's house, I saw defendant, Aleck
Brown, runing towards me from the direction of Oliver Wilkins' house. He ran
up in reach of me, and I saw it was Aleck Brown. He sorter circled around a
light made by a lamp in Ben Holiday's house, as if trying to shun the light,
and went towards his home in a sort of trot. I got scared, and ran back
towards the Macedonian Church, where my mother was. I didn't stop running until
I got to the Macedonian Church. Aleck was running fast until he passed
me, and after passing me he ran, in a sort of a trot, off in the direction
of his home, near there. He was in the street between Ben Holiday's house
and Jane Wilkins' house, coming from the direction of Jane Wilkins'
house, when I first saw him; and I got scared so badly when I saw Aleck running
that I immediately turned, and ran back to my mother, without seeing Ben
Holiday. I am between fourteen and fifteen years of age, and Maria Gage is my
mother. I have known the defendant, Aleck Brown, all my life, and am positively
certain the man I saw running that night, as I have stated, was the defendant,
Aleck Brown. (And the witness points, and identifies the defendant, in court,
as the man he saw running, as testified by him.)" Cross-examined: "I
have talked about seeing Aleck that night with Uncle Oliver Wilkins. I didn't tell him
what I was going to say. I *130 don't know why I wasn't asked to testify at the
examining trial. I know Aleck Brown well, and one reason I got scared was
because his shirt was unbuttoned, and he ran up so close to me I could have put my
hand on him. As soon as I saw my mother, upon my return, I told her about my
seeing Aleck Brown running, and about my getting scared, and failing to deliver
her message to Ben Holiday." Maria Gage, being sworn for the state,
testified: "I am the mother of Joseph Gage, and he is fourteen years old. I sent him to Ben
Holiday's on the night Jane was killed. Joseph left just after dark. He was gone
about one-quarter of an hour, and had been back about half an hour when we
heard Aunt Darcas screaming that Jane was killed. I was owing Ben Holiday one dollar,
and had promised to send it to him on that day, but a check for my money had been
lost, so I could not get my money that day; and I sent my son Josh to Ben
Holiday's that night to tell him I would get the money, and pay him the next day. It was
about nine o'clock, I suppose, when I started him to Ben Holiday's, and in
about fifteen minutes he came running back, and said that he did not see Ben Holiday;
that when he got to Ben Holiday's house he met Aleck Brown, the defendant, running
by Holiday's house; and that this frightened him so that he turned, and returned
in a run, without seeing Ben Holiday. About one-half an hour or more after
Josh returned, and told me this, I heard Darcas Gage screaming out that her child
had been murdered. I live near Col. Jones'. It is almost a mile from Col.
Jones' to the place where Jane was killed." Here the state closed. Caddy Brown, being sworn for the defendant,
testified: "I am the wife of Aleck Brown, the defendant. We went to bed about half
past eight on the night Jane was killed. We went to sleep. I heard Aunt Darcas
screaming, which waked me up. Aleck was asleep beside me in the bed. I woke him up,
and told him to put on his clothes, and run on ahead of me. It was dark when he got
up, and I don't know what clothes he put on. We had supper late. It must have been
eight o'clock or after. Aleck might have been knocking about the lot while I was
getting supper. I was busy, and didn't pay any attention to him. When I got over to
Oliver's, Aunt Darcas threw her arms around me. She told Aleck to go after
Oliver." Mary Brown, being sworn for the defendant,
testified: "I am the daughter of Aleck Brown. I was at Jane Wilkins' on October 15,
1892, and left there about seven o'clock. Uncle Oliver was out hunting that
morning, and gave us a squirrel. **601 Papa cut it up, and salted it. I took two
squirrel tails home with me, and gave them to my little brothers to play
with. The last I saw of them, they were playing with them around the house."
Cross-examined: "The squirrel was dressed by Oliver Wilkins before he gave it to
me, and he gave it to me before noon of that day, and I took it in my hand over
from Wilkins' house to defendant's." *131 George Kirk, being sworn for the state,
testified: "I took Aleck's sister to the supper that night." William Matthews, being duly sworn for the
defendant, testified: "On the night Jane Wilkins was killed, between seven and eight o
clock, I was going south, down the railroad track; and at the southeast corner of
the block on which Oliver Wilkins, Ben Holiday, and Darcas Gage live, I saw the
defendant turn the corner of the fence, coming from the direction of his
residence, and going up north, in the direction of Dally Nunn's corner." Dr. J. B. Camps, being sworn for the defendant,
testified: "I walked from the gambling joint where Oliver Wilkins was on the
night Jane Wilkins was killed to Oliver's residence. I took six minutes to walk
there, and six minutes to walk back from there, at a pretty rapid gait." Dyer Moore and McPhaul & Hood, for
appellant. *132 R. L. Henry, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of murder in the first
degree, and his punishment assessed at death. It is contended that the act of the
special session of the twenty-second legislature, organizing the twenty-first
judicial district, is unconstitutional, because the governor did not, in his
proclamation convening said legislature, designate this particular matter in said
proclamation as a "subject" for legislation. Article 4, § 8, Const., provides that "the
governor may, on extraordinary occasion, convene the legislature at the seat of
government, or at a different place, in case that should be in the possession of the public
enemy, or in case of the prevalence of disease thereat. His proclamation shall state
specially the purpose for which the legislature is convened." It is further
provided by article 3, section 40, of said section: "When the legislature shall be
convened in special session, there shall be no legislation upon any subject other than those
*133 designated by the proclamation of the governor calling such session, or
presented to them by the governor, and no such session shall be of longer duration than 30
days." The proclamation, among other things, convened the legislature "to
reapportion the state into congressional, senatorial, judicial, and representative
districts, and to provide for the election of officers therein." The judicial
districts mentioned in the proclamation were those presided over by the district judges. A
casual inspection of the proclamation renders this certain. That the authority to
reapportion or reorganize the judicial districts of the entire state necessarily
carried with it the power to reapportion any given number of such districts is to our
minds a self-evident proposition. The office of the proclamation is to designate
the subjects, and not the manner or extent of legislation on such subjects.
"It was not the intention to require the governor to define with precision, as to
detail, the subjects of legislation, but only in a general way, by his call, to
confine the business to the particular subjects." Mitchell v. Turnpike Co., 3
Humph 455; Devereaux v. City of Brownsville, 29 Fed. Rep. 742; Baldwin v. State, 21 Tex. App.
591, 3 S. W. Rep. 109. That the legislature may only enact legislation in part
in relation to the subject mentioned in the call does not render such
legislation invalid, nor is it necessary to the validity of such legislation
that the whole subject-matter should be acted on by the legislature. The call
includes the entire subject of reapportioning the judicial districts, and
authorized "any and all such legislation upon that subject as was deemed
necessary by the legislature. It was not necessary, nor would it have been
proper, for the governor, in his proclamation, to have suggested, in detail, the
legislation desired. It was for the legislature to determine what the
legislation should be." Baldwin v. State, 21 Tex. App. 591, 3 S. W. Rep. 109. 2. We do not concur in contention of counsel
that the object and purpose of the act are not sufficiently stated in its caption.
It was not necessary to state in the caption the different counties
constituting the newly-constituted district, nor to state that one of the counties composing
such district was transferred from some adjoining district. The caption is
sufficient, and not violative of article 3, § 35, Const. [FN1] FN1 Const. art. 3, § 35, provides that no
bill shall contain more than one subject, which shall be expressed in its title. 3. Defendant's motion to set aside and quash the
indictment because he was not allowed an opportunity for challenging the array of
jurors constituting the grand jury was not well taken. He made no request to be brought
from jail for that purpose. This was necessary. Code Crim. Proc. art. 377; [FN2]
Willson, Crim. St. §§ 1901, 1902. FN2 Code Crim. Proc. art. 377, provides
that any person, before the grand jury has been impaneled, may challenge the array, or any
person presented as grand juror, and in no other way shall objections to the legality
of the grand jury be heard, and that any person confined in jail in the county shall,
on his request, be brought into court to make such challenge. 4. A continuance was sought in order to have
analyzed the blood found upon the defendant's clothing. There was no diligence
used to obtain such analysis, and no excuse given for such failure. The murder
occurred October 15th, and the application for continuance was filed January
14th following. Again, the blood spots were found upon defendant's hat, *134
pants, shirt, and shoes, and the application alleges it came from a squirrel he
had dressed on the morning preceding the homicide at night. The evidence
adduced by himself, as well as by the state, shows that he did not dress the
squirrel. He introduced his daughter, who stated that a squirrel **602 had
been given her on the morning in question, but that it was dressed before she
received it, and she carried it home after it was given her, and the state
introduced the witness who made the present, and who also dressed it. The
analysis could not have been material, under the facts of this case. 5. When the allegations in a bill of exceptions
are contradicted by a statement of the court, annexed to the bill, such
statement will be held to correctly present the matter at issue. As thus qualified,
the bill disclosed that Oliver Wilkins, husband of deceased, said to defendant,
"Aleck, you have killed my wife." Defendant made no reply, and walked
off. The admission of this evidence was not error. 6. It was not error to receive and record the
verdict on Sunday. Powers v. State, 23 Tex. App. 42, 5 S. W. Rep. 153; Walker
v. State, 13 Tex. App. 618; Shearman v. State, 1 Tex. App. 215. 7. The bill of exceptions recites the reception
of the verdict on Sunday, which was the 15th day of the month. The entry of the
judgment is shown by the transcript to have been made on the 14th.
Because of this variance it does not follow that the judgment was entered on
Sunday. If entered on Sunday, it was a fact easy of ascertainment and proof, and
should have been shown, if it was desired to set aside the judgment on this
ground. We are not authorized to presume, from the variance in the dates
stated, that such entry actually occurred on the 15th, or on Sunday. Presumptions
are indulged in aid and support of the judgment. The party attacking the
judgment must overcome such presumptions. The day set out in record of
judgment simply recited the beginning of the trial. 8. The court's omission to instruct the jury in
regard to the law of manslaughter was not error. The evidence does not raise that
issue. 9. The evidence supports the conviction. In
addition to previous quarrels and difficulties between the parties, and threats of
the defendant against deceased, the killing, and the manner of its execution,
were attended with such circumstances of enormity and cruelty as afford sufficient
evidence to warrant the conclusion that the killing was the result of a sedate,
deliberate mind, and formed design, and that it was committed upon express malice.
The judgment is affirmed. Judges all present and concurring. Tex.Crim.App. 1893. BROWN v. STATE. 22 S.W. 596, 32 Tex.Crim. 119 END OF DOCUMENT |
|
|
|
|
|
|
|
|
|