SUPREME COURT RECORDS PAGE 10
File contributed by Lisa Lach and proofed/formated by Dena Stripling
Appeal from district court, Bastrop county; Lafayette Kirk, Judge.
Aleck Brown was convicted of murder in the first degree, and appeals. Affirmed.
On a trial for murder, evidence that the husband of deceased told defendant that he
(defendant) had killed deceased, and that defendant made no reply, was competent.
Where the defendant in a murder trial applied for a continuance to have blood stains
on his clothes analyzed, the affidavit alleged that the blood stains were from a squirrel
which he had dressed on the morning preceding the homicide. Defendant's daughter testified
that a squirrel had been given her on that morning, but that it was already dressed, and
this testimony was corroborated by the person who gave it to her. Held, that the continuance
was properly refused.
Where the defendant in a murder trial applied for a continuance to have blood stains on
his clothes analyzed, and the murder occurred in October, and the application was made in
January following, no sufficient diligence was shown to warrant the granting of a continuance.
Where the allegations in a bill of exceptions are contradicted by a statement of the court
annexed to the bill, such statement will be held to correctly present the matter in issue.
Under Code Cr.Proc. art. 377 [Vernon's Ann.C.C.P. art. 358], providing that any person,
before the grand jury has been impaneled, may challenge the array, or any person presented
as grand juror, and in no other way shall objections to the legality of the grand jury be
heard, and that any person confined in jail shall, on his request, be brought into court to
make such challenge, the provision that such person make such request is mandatory; and,
unless he does make such request, he cannot afterwards object that he was not allowed an
opportunity to challenge the array.
Defendant had, prior to the homicide, had several quarrels with deceased, and on the night
of the homicide was seen standing at her gate, quarreling with her. Witness heard four
blows struck, and heard deceased scream after the first blow. Deceased's head was chopped
to pieces by an ax, and defendant, when arrested, had numerous blood stains on his clothes,
which he accounted for by saying that it was blood from a squirrel which he had dressed;
but this was controverted by his daughter, who testified that the squirrel had been given
to her already dressed. Held sufficient to support a conviction of murder in the first degree.
The evidence not raising the issue of manslaughter, a charge thereon need not be given.
Under Vernon's Ann.St. Const. art. 4, § 8, providing that the governor may convene the
legislature on extraordinary occasions, and that his proclamation shall state specially
the purpose for which it is convened, and article 3, § 40, providing that the legislature
so convened shall not legislate on any other subjects than those designated in the
proclamation or presented to them by the governor, he need not define subjects of legislation
with precision; and a proclamation authorizing the reapportionment of the judicial districts
or the entire state, by implication, authorizes all such legislation on that subject as may
be deemed necessary by the legislature.
The caption of an act creating a new judicial district need not state the different counties
constituting such district, nor that one of the counties composing it was transferred from
some adjoining district; the omission of such statements therein not being in violation of
Vernon's Ann.St. Const. art. 3, § 35, providing that no bill shall contain more than one
subject, which shall be expressed in its title.
A verdict in civil, as well as in criminal, cases, may be lawfully received and entered on
**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
Tishie Kerr, having been sworn for the state, testified: "About 9:30 o'clock on the
night that Jane Wilkins was killed, I **599 heard four or five licks struck, and heard
Jane scream. The licks sounded like some one cutting wood. There wasn't five seconds
between the licks. I live at John Kerr's. The licks sounded like they were at Wilkins'
house, and I recognized deceased's voice, in a scream, following immediately after I
heard the first blow, and heard the scream only one time. The voice was a scream, as
if in distress."
Ben Holiday, being sworn for the state, testified: "I live south of Oliver Wilkins'
about fifty or sixty yards. On the night of October 15, 1892, I went to town at the
first of dark, and came back in about twenty minutes. *127 When I came back, Aleck
Brown, the defendant, was talking with Jane Wilkins, the deceased. He was standing
on the outside, and she was on the inside, of the yard fence of Oliver Wilkins' place.
My little boys, who had gone up to the Taylor House, got home about half an hour,
or may be three- quarters of an hour, after I got back from town. I live on the most
direct route from defendant's house to Oliver Wilkins', and in going to the Taylor
House, by the most direct route, from my place, you would have to pass Oliver Wilkins'
place. Maria Gage lives about one-quarter of a mile southeast from where I live; and,
at the time of the death of Jane Wilkins, Maria Gage owed me a dollar, which she
promised to pay on that day, but did not pay on that day. My house is very near the
sidewalk, and on the night of the murder there was a lamp burning with a full light
until a few minutes before I heard Aunt Darcas screaming, when she found her daughter
dead. There is one door and one window of the house on the west side of the room the
lamp was in that night."
Lloyd Holiday, being sworn for the state, testified: "About two or three hours after
dark on the night of the murder of Jane Wilkins, I and my brother left to go to the
Taylor House, and on our return came back by Jane Wilkins' house. The defendant,
Aleck Brown, was there by the fence, talking to her. They said 'Yes' about something.
I was gone about half an hour. She was inside of the yard fence, and he was on the
outside. They were near the gate, on the west side of the house."
Ann Morrison, being sworn for the state, testified: "I live on the opposite side of
the street from Oliver Wilkins'. The street is about thirteen yards wide. Oliver's
house is about ten feet from the street, on the south side, and mine, about the same
distance, on the north side. Oliver's house fronts south, and mine east. On the night
of the murder, at about eight o'clock, or after, I saw Aleck Brown standing on the
outside of Oliver's yard fence of Oliver's house, at or near the northwest corner.
Jane Wilkins, the deceased, was standing on the inside, and they were talking to each
other. They were close together, and one each side of the fence. They were quarreling,
I don't know what about. They stood there quarreling for several minutes. I heard him
say something about money, and I heard Jane say she was through with him, and would
have nothing more to do with him. She left, and immediately went in the house, and
defendant immediately opened the gate, and went in, and left the gate open. He followed
Jane immediately into the house. I heard some noise in Jane's house. It sounded like
some persons fussing and quarreling. This rumpus was kept up several minutes, and I
could not tell what was said by the persons fussing and quarreling. I went out to my
yard fence, and I could tell then that the parties were outside, and south of the
house, fussing and quarreling. I heard Jane say, 'You're a liar.' Then I heard the
defendant, Aleck Brown, say something in *128 answer, but could not tell what it was.
Then I heard about four licks struck, and heard Jane scream after the first lick was
struck, but heard her voice no more after I heard the second blow. After I heard the
blows, and heard Jane scream, I saw some one run and jump over the fence right south
of the gate, and run down by Ben Holiday's, in the direction of his house. I heard a plank of the fence break as he got over the fence. I have seen the defendant there frequently, both day and night, while Oliver Wilkins was not at home. I heard her say, 'You're a liar.' Then I heard him say something, and then she said, 'It's a lie,' and he said something else, and she said again, 'You're a liar.' I went in the house while they were standing at the fence. I stayed a little while, and when I came out I could hear them in the house, talking, quarreling, and sounded like they might be fighting, and I recognized it as Aleck's voice. They kept this up until I went in the house again. I stayed a few minutes, and when I came out they were out in the yard. I could hear them quarreling and talking in the yard. I could not understand all the defendant said. He talked low, but I could understand Jane. She called him a liar three times. I went back in my house the third time. Not long after I went in, I heard the blows struck, and the screaming of deceased; and then I heard some one run across the yard, and saw him jump over the fence, and heard the fence break as he got over. I could not tell how he was dressed. I then went in my house, and stayed about half an hour, I think, and then I called Jane, but she did not answer. I then went and called Aunt Darcas, her mother, and she came, and found Jane dead, with her head split to pieces, with a bloody ax by her side. The defendant and deceased had had quarrels before, and at one time he bit one of her fingers nearly off. I have known the defendant, Aleck Brown, ever since he was a baby. (And the witness points him out, and identifies him in open court, before the jury, and says she is positive he is the man who was engaged in the conversation and quarreling with the deceased on the night of the murder.) I heard the conversation, and recognized his voice. This all occurred in the town and county of Bastrop, in the state of Texas, on or about October 15, 1892."
Jo Sims, being sworn for the state, testified: "I know where Oliver Wilkins was on the
15th of October, 1892, from six o'clock P. M. until Aleck came to tell him of the death
of his wife. He was in the **600 gambling house, a few feet in the rear of the Home
saloon from six o'clock P. M. on said day until I left the gambling house. I left the
saloon about 8 o'clock, and, when I returned, Oliver was gone to the scene of the killing."
Step Smith, being sworn for the state, testified: "Oliver came to the gambling joint
near the Home saloon six P. M. the night Jane was killed, and never left there at all
during the time until Aleck came after him, except once to go into the saloon, a few
feet distant, to get him a *129 drink. He went to the saloon, got his drink, and
immediately returned to the gambling house, and remained there."
Warren Fleming, being sworn for the state, testified: "Oliver Wilkins was at the White
joint in the rear of the Home saloon on the night of the killing of Jane Wilkins, from
a little after six o'clock until defendant came after him. He left only one time during
that time to go into the saloon, a few feet distant, to get him a drink, and was gone
five or ten minutes, --can't be certain,--and returned and remained there until defendant
came after him."
John Majors, being sworn for the state, testified: "Oliver Wilkins, on the night of the
killing of Jane Wilkins, came to the joint in the rear of the Home saloon, and stayed
there from about six o'clock P. M. until the defendant came and told him of the death
of Jane Wilkins. He was gone only once during said time, and then went into a saloon,
a few feet away, to get a drink, and immediately returned. Oliver was betting, and I
was dealing. Oliver was gone after the drink about five minutes,--not over ten minutes,
if that." Cross- examined: "I was busy with my game. I did not pay much attention to
the time, but it did not seem to me more than ten minutes. He had money when he came
back, and went to betting on the game."
Josh Gage, being sworn for the state, testified: "On the night Jane Wilkins was killed,
my mother sent me down to Ben Holiday's to tell him, if he would come up to our house,
she would pay him that dollar she owed him. When I got nearly to Ben Holiday's house,
I saw defendant, Aleck Brown, runing towards me from the direction of Oliver Wilkins'
house. He ran up in reach of me, and I saw it was Aleck Brown. He sorter circled around
a light made by a lamp in Ben Holiday's house, as if trying to shun the light, and went
towards his home in a sort of trot. I got scared, and ran back towards the Macedonian
Church, where my mother was. I didn't stop running until I got to the Macedonian Church.
Aleck was running fast until he passed me, and after passing me he ran, in a sort of a
trot, off in the direction of his home, near there. He was in the street between Ben
Holiday's house and Jane Wilkins' house, coming from the direction of Jane Wilkins'
house, when I first saw him; and I got scared so badly when I saw Aleck running that
I immediately turned, and ran back to my mother, without seeing Ben Holiday. I am
between fourteen and fifteen years of age, and Maria Gage is my mother. I have known
the defendant, Aleck Brown, all my life, and am positively certain the man I saw
running that night, as I have stated, was the defendant, Aleck Brown. (And the witness
points, and identifies the defendant, in court, as the man he saw running, as testified
by him.)" Cross-examined: "I have talked about seeing Aleck that night with Uncle
Oliver Wilkins. I didn't tell him what I was going to say. I *130 don't know why I
wasn't asked to testify at the examining trial. I know Aleck Brown well, and one
reason I got scared was because his shirt was unbuttoned, and he ran up so close to
me I could have put my hand on him. As soon as I saw my mother, upon my return, I told
her about my seeing Aleck Brown running, and about my getting scared, and failing to
deliver her message to Ben Holiday."
Maria Gage, being sworn for the state, testified: "I am the mother of Joseph Gage, and
he is fourteen years old. I sent him to Ben Holiday's on the night Jane was killed.
Joseph left just after dark. He was gone about one-quarter of an hour, and had been
back about half an hour when we heard Aunt Darcas screaming that Jane was killed. I
was owing Ben Holiday one dollar, and had promised to send it to him on that day, but
a check for my money had been lost, so I could not get my money that day; and I sent
my son Josh to Ben Holiday's that night to tell him I would get the money, and pay
him the next day. It was about nine o'clock, I suppose, when I started him to Ben H
oliday's, and in about fifteen minutes he came running back, and said that he did not
see Ben Holiday; that when he got to Ben Holiday's house he met Aleck Brown, the
defendant, running by Holiday's house; and that this frightened him so that he turned,
and returned in a run, without seeing Ben Holiday. About one-half an hour or more
after Josh returned, and told me this, I heard Darcas Gage screaming out that her child
had been murdered. I live near Col. Jones'. It is almost a mile from Col. Jones' to the
place where Jane was killed."
Here the state closed.
Caddy Brown, being sworn for the defendant, testified: "I am the wife of Aleck Brown,
the defendant. We went to bed about half past eight on the night Jane was killed. We
went to sleep. I heard Aunt Darcas screaming, which waked me up. Aleck was asleep beside
me in the bed. I woke him up, and told him to put on his clothes, and run on ahead of me.
It was dark when he got up, and I don't know what clothes he put on. We had supper late.
It must have been eight o'clock or after. Aleck might have been knocking about the lot
while I was getting supper. I was busy, and didn't pay any attention to him. When I got
over to Oliver's, Aunt Darcas threw her arms around me. She told Aleck to go after Oliver."
Mary Brown, being sworn for the defendant, testified: "I am the daughter of Aleck Brown.
I was at Jane Wilkins' on October 15, 1892, and left there about seven o'clock. Uncle
Oliver was out hunting that morning, and gave us a squirrel. **601 Papa cut it up, and
salted it. I took two squirrel tails home with me, and gave them to my little brothers
to play with. The last I saw of them, they were playing with them around the house."
Cross-examined: "The squirrel was dressed by Oliver Wilkins before he gave it to me, and
he gave it to me before noon of that day, and I took it in my hand over from Wilkins'
house to defendant's."
*131 George Kirk, being sworn for the state, testified: "I took Aleck's sister to the supper
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
Dyer Moore and McPhaul & Hood, for appellant. *132 R. L. Henry, Asst. Atty. Gen., for the
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
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.
BROWN v. STATE.
22 S.W. 596, 32 Tex.Crim. 119
END OF DOCUMENT
APPEAL from the District Court of Washington. Tried below before the Hon. I. B. McFarland.
*1 The indictment charged the appellant with the murder of Major Williams. His trial resulted
in his conviction of murder in the first degree, and he was awarded the death penalty.
John McDade, a colored man, was the first witness presented by the State. He identified the
defendant, testified that he knew the deceased, Major Williams, in his lifetime, and was
present when the latter was killed by the former in Washington county, Texas, on the
seventeenth of September, 1881. The parties were present at an entertainment at Jack
Wilson's. The deceased was occupying a seat in the house, when Peter Petty entered and
ordered him to surrender his seat, which the deceased refused to do, whereupon Petty
spit in his face. The deceased got up, and Petty drew a pistol, but Andy Toms took the
deceased out of the house.
After the deceased was taken from the house, the witness saw the defendant inside with
a knife in his hand. He, the defendant, followed the deceased out of the house, and
while the deceased and the witness were facing each other in the yard, the defendant
came up, and asked the deceased if he cursed his, the defendant's, wife. To this inquiry
the witness replied to the defendant that the deceased had not cursed his wife, and the
deceased said that if he had cursed the defendant's wife, he, the deceased, "was man
enough to stick to it;" thereupon, the defendant struck the deceased in the breast with
a knife, and the deceased fell and died in a few minutes. The knife was about five inches
long, the blade being two and a half inches in length.
After the stabbing, the defendant walked around the yard and said that he was ""the best
d--d man there." At the time he was stabbed, the deceased had his hands down by his side;
he had no knife in his hands, and made no demonstration or motion to strike the defendant.
The deceased was about eighteen years old and in good health when he was killed. Ann
Hackett, the wife of the defendant, was walking around the yard with a pistol when the
deceased was killed. The witness saw the wound on the body of the deceased at the inquest
held on the day after the stabbing. The knife had penetrated the left breast near the
On his cross-examination the witness repeated substantially the account of the tragedy
detailed in his examination in chief. He denied that he struck Pete Petty on the head
that night, and said that he saw no other person strike Petty.
The house at which the party was given, and where the tragedy was enacted, had two rooms,
one being a shed room with a partition. The large room was about ten feet by twelve in
size. The house had three doors, one of the doors being in the west end of the large room,
and another in the partition. When Petty told the deceased to get up, the latter was seated
on a bench on the north side of the large room. Mollie Randle and another girl were seated
near him. The deceased fell back towards the door when the defendant struck him with the
knife. He had one foot on the door step just before he fell. The witness was not drunk that
night, but had taken two or three drinks. Byrd Kuykendall had liquor in the little room,
and would give it away to any one who would buy candy from him. The witness denied that
on the day before this trial he told Major Breedlove, of counsel for the defense, that
Bettie Boulding was standing by him when the deceased was killed, but did tell Breedlove
that Bettie Boulding said that she knew nothing about the killing. Willis Boulding was
about the premises at the time of the killing, or at least the witness supposed so, as
immediately afterwards he came up to the body. Eli Randon, the witness thought, was
standing near the southwest corner of the house when the cutting was done. Byrd
Kuykendall was standing very near the witness when the cutting occurred. Rachael
McDade, the wife of the witness, was within ten feet of him. Henry and Jerry Mays
stood within eight feet of the place when the killing occurred. The witness did not
see the deceased have a knife at any time that night. He most positively had none in
his hand when he was killed. The defendant took up for Peter Petty in the difficulty
in the house which arose over Petty spitting in the face of the deceased. There was a
light in the house and two torchlights in the yard at the time of the killing, one of
them being held by Rachel McDade, the wife of the witness.
*2 Still testifying on his cross-examination, the witness said that he saw the open
blade of the knife in the defendant's hand before he struck the deceased. Witness did
not attempt to prevent the defendant from cutting the deceased, because he was afraid
of being cut himself. The defendant had his knife in his hand, down by his side, just
before the cutting. The witness and his wife left the place and went home as soon as
the deceased fell, did not stay until he died, which, he was informed, took place
within five minutes. He was present at the inquest next morning. The witness was not
drunk, and was positive in his declaration that his wife Rachel had a lighted lamp in
her hand at the time of the killing--as positive of that as of any other fact, and
declared that if he was not correct in that statement, he was correct in nothing he
had stated. He knew that the deceased and the defendant had been good friends, and
did not know that they had ever had a previous disagreement.
Eli Randon, colored, was next introduced by the State. He testified that he was present
and saw the stabbing. Just before it occurred, Pete Petty was running around the yard
with a pistol in his hand, and the defendant was standing talking to the deceased in
the yard with an open knife in his hand, holding it behind him with the blade pointing
out. The witness took a light from some one in the door and looked to see whether it
was a knife or a pistol. The deceased was doing nothing whatever when the defendant
struck him in the breast with the knife. He had his hands down beside his body. After
stabbing the deceased, the defendant walked off waving his knife and saying something.
After he was cut, the deceased walked about his length and fell by the door of the
house, where he expired in about three minutes. The witness remained with the body all
night. The deceased was doing nothing at the time he was stabbed. He had no knife in his
hand, nor did the witness find one about his person afterwards. The wife of the
defendant was on the premises, declaring that she would blow a hole through any one
who interfered with the defendant. Prior to the killing the defendant was walking
around, mad at and cursing the deceased, and was cursing him when he inflicted the
On his cross-examination, the witness stated that he was in the house when the
difficulty took place between the deceased and Pete Petty. The deceased and the
defendant had a slight misunderstanding or quarrel in the house, which did not
amount to much. At the time the deceased "went for" Petty, the defendant took hold
of him, the deceased. Andy Toms and the deceased, the witness thought, went out of
the house first, the defendant following. The witness went out after them, to quiet
the row if he could. Petty was walking about the yard cursing, and was standing, as
near as the witness could tell, about six feet from the northwest corner of the
house, when the killing took place. Bettie Boulding was at the house that night.
The witness saw Rachel McDade there, but saw nothing in her hands.
*3 Andy Toms, for the State, gave substantially the same account of the killing as
that given by John McDade. He added that when the deceased and Petty got into the
difficulty in the house, he, witness, took the deceased out of the house, but the
deceased returned, and the witness did not know whether the deceased or the defendant
came out of the house first the second time. The deceased quarreled with no one when
he went back into the house, so far as the witness knew. The deceased and the defendant
had hold of each other in the house, but that row did not amount to much.
On his cross-examination, the witness stated that he did not know that the defendant
took hold of the deceased to prevent Pete Petty from assaulting him. The defendant
had hold of the deceased's hand when the witness started out of the room with the
latter. But few minutes elapsed between the dispute in the house and the cutting.
After the cutting the defendant went around the corner of the house, waving his
knife and saying, "What a G--d d--d good man I is!"
Rachel McDade testified, for the State, that she was standing near her husband,
John McDade, when the cutting took place. The defendant approached the deceased
and said, "Take it back!" The deceased replied, "By G--d, you can't make me take
it back!" whereupon the defendant stabbed him. After cutting the deceased the
defendant ran to his horse, calling to his wife to come on. The witness had no
lamp in her hand.
Cross-examined, the witness stated that she stood in front of the deceased when
he was stabbed. She did not see the difficulty in the house. Just about or near
the time of the cutting some one brought a lamp out near the parties and placed
it on the ground. The witness picked it up and put it in the door. "If any body
says I had a lamp in my hand he tells a yarn!?? The witness went off home when
the deceased fell.
Other testimony introduced by the State harmonized in every particular with that
recited--all concurring in the declaration that the deceased exhibited no knife,
and that none was found about him after his death.
For the defense, Andrew Harris testified that he saw nothing of the killing. He
detailed the difficulty in the house between Petty and the deceased, and declared
that, as soon as that started, the deceased and the defendant went to fighting.
Thereupon the witness left, going home, and witnessed none of the after occurrences.
Wash. Pleasants, for the defense, stated that upon the commencement of the
difficulty between the deceased and Petty in the house, prior to the cutting,
the deceased and the defendant became involved in a fight without exchanging a
word. They passed one blow and clinched. He next saw the defendant and a number
of others going out of the door.
W. Ward, for the defense, described the row between the deceased and Petty in the
house. He did not see the defendant and the deceased in a row in the house. He
stated that the defendant went out of the house in advance of the deceased.
*4 The opinion sets out the statement of Bettie Boulding as it appears in the
defendant's application for a continuance, and which was read in evidence.
The defendant's motion for a new trial raised the questions involved in the
rulings of this court.
The rule laid down in Skaro's case (43 Texas, 88) is "that an admission that a
witness, on account of whose absence a continuance is asked, would swear, if
present, as stated in the affidavit for continuance, will not defeat (the application)."
Such rule applies only where the defendant is legally entitled to a continuance; and
hence the defendant in this case was not injured by a charge which instructed the
jury, in substance that the written statement contained in the motion for continuance
should be received, and given the same weight, and no more, as if the witness had been
on the stand.
An agreement to permit defendant to read the testimony of an absent witness, in order
to avoid a postponement, held not to preclude the state from introducing the absent
witness, if possible, before the conclusion of the evidence.
Instructions that, from the evidence, the jury were to "deduce the guilt or innocence
of defendant," held erroneous, because repugnant to the doctrine of the presumption
of innocence and reasonable doubt.
The court, in a trial for murder, instructed the jury that it was for them to determine the facts from the evidence before them, "and, applying the facts thus ascertained to the law as above given you, it will be your duty to deduce the guilt or innocence of the defendant." Held, erroneous, inasmuch as the jury is required to believe the defendant innocent in order to acquit, and because repugnant to the rule which requires a verdict of not guilty, unless the state establishes the guilt of the defendant beyond a reasonable doubt.
In a criminal prosecution it is incumbent on the trial court to charge the jury upon every phase of the case made by the evidence.
Evidence in a murder trial held to require a charge on the subject of "cooling time."
McAdoo & Vinson, and Breedlove & Ewing, for appellant.
J. H. Burts, Assistant Attorney General, and F. D. Jadon, for the State.
George Hackett was tried and convicted for murder of the first degree, and his punishment
assessed at death.
We will consider the assignments of error in the order presented in the brief of the
appellant, except those relating to the charge of the court, which will be considered
last. The first error assigned relates to the overruling of the defendant's application
for a continuance. In regard to this matter, there was no error of which the defendant
can complain, the witness Bettie Boulding being present in court before the evidence
The seventh assignment of error is, that "the court erred in overruling the defendant's
motion for new trial; 1, on acount of newly discovered evidence; 2, in that the court
allowed the State to introduce Bettie Boulding on the stand, in the face of the written
agreement to read the statement of what her testimony would be."
With regard to the last ground in this assignment, we are informed by the record that
the defendant had not been served with a copy of the venire facias, and that the cause
was about to be postponed, when a written agreement was entered into by the defendant
and the county attorney to the effect that the defendant would announce with the right
to read to the jury, as evidence, the testimony of Bettie Boulding as set forth in the
defendant's motion for continuance.
There was nothing in this agreement which inhibited the county attorney from introducing
the witness, if her presence could be had. Certainly the defendant could not be heard to
complain of the introduction of a witness who, according to his oath, would swear to such
a perfect defense to the charge pending against him. If this motion for continuance was
made in good faith, the introduction of this witness would have been heard with perfect
satisfaction. We are of the opinion that, notwithstanding the agreement, the county
attorney had the right to introduce and examine the witness Bettie Boulding. This,
however, was not allowed when the defendant objected.
Counsel for the defendant assigns as error the charge of the court which relates to
the evidence of this witness. The charge was, in substance, that the written statement
contained in the motion for continuance should be received and given the same weight,
and no more, as if she had been on the witness stand. Counsel insists that the rule
stated in Skaro v. The State, 43 Texas, 88, is in point. The rule there stated is "that
an admission that a witness, on account of whose absence a continuance is asked,
would swear, if present, as stated in the affidavit for continuance, will not defeat
the application." If the defendant in the case in hand had been legally entitled
to a continuance, the above rule would apply; but, as he was not injured in this
matter (the witness Bettie Boulding appearing in time to be used as a witness),
the rule has no application whatever.
*5 We will now consider the charge of the court, in which we think there is error.
In the twelfth subdivision of the charge the court instructed the jury as follows:
"It is for the jury to determine the facts from the evidence before them, and applying
the facts thus ascertained to the law as above given you, it will be your duty to
deduce the guilt or innocence of the defendant," etc.
Deduce the innocence of the defendant! Mr. Webster says that "deduce" means "to derive
by logical process; to obtain or arrive at as the result of reasoning; to infer."
Reasoning is nothing but the faculty of deducing unknown truths from principles
To justify an acquittal, must the innocence of the defendant be deduced, reasoned out,
or inferred, by applying the facts ascertained to the law as given by the court?
It is well settled in criminal law that the jury need not believe the defendant
innocent in order to acquit. The State asserts an affirmative proposition, which
is the guilt of the defendant, and the jury must acquit by finding not guilty unless
the State establishes this proposition beyond a reasonable doubt. If the jury are
required to deduce the guilt or innocence of the defendant from the law and evidence
(under a rule of criminal law), they would be placed in a very perplexing and inconsistent
condition. The rule of criminal law referred to requires the jury to believe from
the law and evidence that the party is guilty beyond a reasonable doubt, before they
will be warranted in law to convict. The jury may believe him guilty; this belief
will not suffice unless from the law and evidence they are satisfied of his guilt
beyond a reasonable doubt; and if not so satisfied they, under the law, must acquit
by finding him not guilty. They are not required to believe him innocent. The verdict
of not guilty is simply, in effect, to deny that the State has established the affirmative
proposition, which is the guilt of the defendant, beyond a reasonable doubt; and is not
a declaration of innocence. The jurors may believe him guilty, but can not, because of
doubt, convict. Under this charge they can not acquit because they believe him guilty.
They have deduced his guilt, but not beyond a reasonable doubt, hence can not convict.
They have not deduced his innocence; hence under this charge they can not acquit.
We are of the opinion that this charge is erroneous, and is in direct conflict with the
rule that the person is presumed innocent until his guilt is established beyond a
We are of the opinion that the law was not applied to the theory of the case presented by
the evidence of the witness Bettie Boulding. The facts expected to be proved by this
witness, as found in the motion for continuance and by agreement read to the jury, are
as follows: "That she was present at the time of the difficulty. That Major Williams
struck the defendant in the house without any provocation whatever, and also drew an
open knife on the defendant and tried to cut him with the knife; and that the defendant,
to keep Williams from cutting him, ran out of the house; and that Williams immediately
followed the defendant out of the house into the yard with an open knife in his hand,
and was trying to cut the defendant with the knife; and that two or three persons were
assisting Williams in his efforts to get to defendant with the knife; that Williams was
mad and cursing the defendant; that, while Williams was pursuing and cursing the
defendant, and so being assisted by other persons in the yard, the defendant struck
with his knife in his own necessary self-defense. That the defendant was all the time,
from the beginning to the ending of the difficulty, at the time and place acting in
his necessary self- defense, and was all the time trying to prevent a difficulty and
to avoid any collision with Williams and all other persons."
*6 The court charged upon murder of the first and second degrees and manslaughter, and
submitted this, and only this, charge upon the subject of self-defense: "Homicide is
permitted by law when inflicted for the purpose of preventing the offenses of murder,
rape, robbery, maiming, disfiguration, castration, arson, burglary and theft at night;
but in such case it must reasonably appear by the acts, or words coupled with threats
of the person killed, that it was the purpose and intent of such person to commit one
of the offenses named."
Considered in the light of the facts in this case, this is a most remarkable charge. What
had robbery, maiming, theft at night, or castration to do with this case? The deceased was
killed at a social gathering. There was no attempt to rob, rape, maim or castrate any person.
There is another serious objection to this charge. It requires the words to be coupled
with threats in order for it to reasonably appear that it was the purpose and intent of
the party killed to commit one of the offenses. The purpose may appear with threats if
the words are coupled with the acts of the party killed. But suppose that the above
charge was perfectly unobjectionable in every particular, it would simply announce an
abstract proposition of law. There is no attempt to apply the law to that theory of the
case which is presented by the evidence of Bettie Boulding. The rule upon this subject
is, that instructions should not be presented in the form of abstract propositions, but
should be constructed upon the evidence in the particular case at bar. A state of facts
should be supposed which accords with the evidence; then deduce the legal conclusions
applicable to such state of facts. (Burrell v. The State, 18 Texas, 713; O'Connell v.
The State, 18 Texas, 343.) This rule applies not only to the case as made by the evidence,
but to every phase which has any support in any part of the evidence.
We are of the opinion that the court should have applied the law directly and
affirmatively to the theory of the case made by the evidence of the witness Bettie
Boulding. We also suggest the propriety of instructing the jury upon the subject of
cooling time, in view of the evidence of some of the witnesses for the defendant.
The other assignments will not be discussed, as the case will probably be divested
of these questions on another trial.
For the errors in the charge the judgment is reversed and the cause remanded.
Reversed and remanded.
GEORGE HACKETT v. THE STATE.
13 Tex.App. 406, 1883 WL 8812 (Tex.Ct.App.)
END OF DOCUMENT