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Tex.Crim.App. 1893.
BROWN v. STATE.
22 S.W. 596, 32 Tex.Crim. 119

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, 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.

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
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 WILINSs' 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 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 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 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 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.
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
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 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 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 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. 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."
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. 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 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." 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."
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 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.

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, 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 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.
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

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 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.

The evidence not raising the issue of manslaughter, a charge thereon need
not be given.

A verdict in civil, as well as in criminal, cases, may be lawfully received
and entered on Sunday.
The following is the statement of facts.
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 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 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."
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
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 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 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 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 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.
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
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 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 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 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. 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."
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. R. L. HENRY, Asst. Atty.
Gen., for the State.

FN1 Const. art. 3, § 35, provides that no bill shall contain more than one
subject, which shall be expressed in its title.

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, 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 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.
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.Ct.App. 1879.
FRANK WEBB v. THE STATE.
5 Tex.App. 596, 1879 WL 7410 (Tex.Ct.App.)

A higher degree of insanity must be proved to absolve one from the guilt of
a criminal act than to discharge him from a contract.

In determining whether one was insane at the time of committing a particular
act, evidence of his state of mind both before and after the act is
admissible. The inquiry, however, is to be directed to the particular act
done, and to the time thereof.

The opinion of a witness not an expert is competent upon the question of the
prisoner's sanity, where such opinion is formed upon facts within the
personal knowledge of the witness, and sworn to by him before the jury.

The action of the court on an application for a continuance cannot be
reversed on error, unless it clearly appears from all the facts and
circumstances that there has been an abuse of discretion operating to the
prejudice of the party.

In prosecution for murder in which the defense of insanity is made it is the
duty of the court to instruct the jury that every man is presumed to be
sane, and possessed of sufficient reason to be responsible for his crimes,
until the contrary is proved to their satisfaction; and that, to establish
the defense of insanity, it must be clearly proved that, at the time of the
offense, the accused was laboring under such a defect of reason as not to
know the nature or quality of the act he was doing, or that if he did know,
he did not know he was doing wrong.

*1 APPEAL from the District Court of Brazoria. Tried below before the Hon.
W. H. BURKHART.
The indictment charged the murder of Charles R. FOSTER, in Galveston County,
on September 2, 1876. The trial was had in Brazoria County, on a change of
venue, and the appellant was convicted of murder in the second degree, his
punishment being assessed at forty years' confinement in the penitentiary.
The appellant interposed, to no purpose, the defence of insanity. He was
defended in the court below by E. J. WILSON and J. T. MITCHELL, Esqs.
Robert VANDERPOOL, the first witness for the prosecution, testified that he
is now, and was on September 2, 1876, a resident of Galveston, Texas. Knew
both appellant and deceased prior to the killing, and has known the
appellant since. On the day last named, in Galveston County, Texas, he saw
the appellant kill the deceased. On that day, between nine and ten o'clock,
A. M., witness saw appellant sitting on the railroad track, near the
stock-pens of deceased. He had his coat off, and thrown across his left arm.
The office and stock-pen of deceased were not more than forty or fifty feet
from where appellant was sitting. About this time witness saw deceased come
out of the office and walk down to the gate. Appellant said to deceased, "I
want to see you." Deceased responded, "I'll see you when I get through with
Paul." Appellant then said, "I've waited long enough; you've done me dirt,"
and fired at deceased three times. At the first shot deceased said, "Don't
kill me, Frank." After the killing, appellant said, in reply to the
book-keeper NORMAN's question what he had "done," "I gave him fourteen days
to settle, and he didn't do it, and I killed him." Appellant appeared to
witness to be all right. He fired on deceased three shots from a six-shooter
pistol, which he pulled from under the coat he held on his arm, and after he
fired he put the pistol back in the side- pocket of the coat, as it lay on
his arm, and walked off. The pistol was a large-sized Colt's cartridge
six-shooter. Witness saw appellant on the Thursday before the Saturday of
the killing, at the Olive Branch Hotel, in Galveston City, and saw him in
the city of Galveston some days before Thursday, and at no time noticed
anything unusual or strange in his looks or conduct.
On cross-examination, the witness says that he was on the inside of the pen,
through which he could see plainly, as it was an open, pine-plank fence. Jim
GIDDINGS was at the gate, holding it open. Appellant and deceased were
outside. GIDDINGS, Paul BAYSE, and witness were about the same distance from
the parties. Mr. NORMAN and Mr. DAVIS were in the office until the firing
commenced, when they came out. Deceased came out of the office to sell some
cattle to Mr. BAYSE. Witness was in the employ of the butchers, driving
cattle from the pen. After the killing, appellant very deliberately walked
off in the direction of the city.
*2 The State next introduced James GIDDINGS, who testified that about one-
half hour before the shooting, and while he was lying under a car on the
side track south of the pen, appellant came down the track and sat down on
it, holding his coat over his left arm. Presently Mr. Paul BAYSE came to the
pens to buy some stock, and witness called deceased, who was then in the
office, to come down. As deceased came, appellant said to him, "I want to
see you;" to which deceased replied, "I will see you as soon as I wait on
Paul." Appellant then said, "I have waited long enough," and immediately
pulled his pistol and commenced his fire. After the first fire, deceased
staggered up against the fence, and said, "Frank, there is no use in that."
On cross-examination, the witness states that when the killing took place he
was at the gate, and VANDERPOOL and BAYSE near by.
The next witness introduced by the State was Paul BAYSE, who, being a
Frenchman, and unable to speak the English language, testified through a
sworn interpreter. He testified that, on September 2, 1876, he was at the
stock-pens of deceased, in Galveston County, when the killing occurred. Knew
the parties; and when the killing took place was about fifteen or twenty
feet distant. Jim GIDDINGS was about thirty feet off, and standing in the
gate, VANDERPOOL about equidistant. When witness was coming to the pens he
saw GIDDINGS lying under a car on a side track, on the gulf side of the pen.
Appellant was near by, sitting on the track, with his coat off. Witness
counted only two shots fired by appellant.
Cross-examined: Witness says that he heard deceased say nothing. Heard
appellant say something which he did not understand, as he speaks only
enough English to buy cattle.
Joe DAVIS, witness for the State, testified that when deceased was killed,
he and NORMAN, the book-keeper, were in the office together, and ran out on
hearing the report of fire-arms. Witness stopped at the foot of the steps,
but NORMAN ran on to where the body lay, meeting appellant walking from that
direction. As the two passed, witness heard NORMAN ask, "Frank, what have
you done?" To which appellant replied, "I told him I would give him a a
chance." Appellant continued walking on towards town, and witness saw him an
hour afterwards, under arrest. Had known appellant four or five years, and
had been for five months boarding at the same house with him, and had never
seen anything in his manner or conversation indicating insanity.
On cross-examination, witness testifies that he is neither an expert nor a
physician. When appellant was brought back to the place of the killing, in
the presence of the body during the whole time of the coroner's inquest, he
displayed no emotion, but observed a seeming indifference.
A. P. NORMAN was the next introduced by the prosecution. He testifies that
he was in the office of deceased when he was killed. Before the killing he
saw appellant sitting on the railroad, as described by other witnesses. When
he heard the shots he ran out, and saw appellant standing over the body of
deceased, and as witness started towards them appellant walked off in the
direction from which witness was coming. As witness ran by he asked, "Frank,
what have you done?" to which witness heard no reply. On the Saturday week
before the killing, witness met appellant in Galveston, and had a long talk
with him about his business difficulty with deceased. Appellant gave witness
correctly the dates of the transactions. Witness was the friend of both
parties, and the book-keeper of deceased.
*3 The misunderstanding spoken of grew out of some cattle business, the
appellant having left some with deceased for sale. On the Tuesday before the
killing, witness again met appellant in the Olive Branch Hotel, in
Galveston, and there expressed the wish that the matter might be settled
without a personal difficulty; to which the appellant assented, and
requested witness to see deceased about it, and to that end.
On cross-examination, witness said that appellant told him that deceased had
garnished his money, and that the garnishment had to be withdrawn. Between
this time and the killing, appellant did not call on witness to know if a
settlement had been made. In his conversation, appellant was very bitter
against the deceased, though he made no threats. In none of his
communications with appellant had witness observed anything strange or
unusual about his appearance. Appellant, for some time previous to the
killing, though not at the time, had been in the employ of J. C. BORDEN, as
salesman of stock, a position which required a shrewd business man. At the
time of the killing, appellant was doing business on his own account,
driving stock to the Galveston and Houston markets. Witness reported to
deceased the conversation with appellant in regard to a settlement.
William LOTT, for the State, testified that he was, at the time of the
killing, a clerk in the ammunition store of LABADIE. On the morning of the
shooting, between seven and eight o'clock, appellant brought a Colt's
cartridge six-shooter, of forty-five calibre, into the store, and had
witness to load it all round, for which he paid the price, twenty-five
cents. Appellant then put the pistol in the breast-pocket of his coat, and,
throwing his coat over his arm, walked off. It is about one and a-half miles
from LABADIE's store to the stock-pen where the shooting was done. Witness
noticed nothing unusual in the manner of appellant. Here the State rested.
The defendant introduced Amos HAYNES, his cousin, who testified that he had
known appellant from his childhood. The grandfather and granduncle of
appellant had both been insane, and both committed suicide. The mother and a
cousin of appellant were insane, and the father of appellant was a very
strange and a very eccentric man. Witness never heard of other insanity in
the family, and knows this as family tradition.
J. D. WEBB, for the appellant, testified that he is the brother of
appellant. The grandfather and granduncle on their father's side had both
been insane, and both committed suicide. Their mother was now, and had been
insane for fifteen years. Their father was a very strange and eccentric man.
Before he died he had a suit of clothes made. He had the coat, or robe, made
to reach his heels, bound with wide red tape, and his pants with wide red
stripes, and desired to be buried in the suit, with his boots on, using a
plain box for a coffin. Don't know that he was insane.
When the appellant came home, about a month before the killing, his
demeanor, appearance, and conduct were so changed that it caused
apprehension that his mind had gone wrong. His habits of life had previously
been jovial and sociable, but he now had became reticent, and would go to
the woods alone, and remain so for hours. Would talk to no one, nor speak of
his business matters. On this trip he remained at home but a short time
before he went back to Houston, where he had some cattle. The day before the
killing, witness went to Galveston to sell some cattle, getting there at
night. Found appellant in bed, asleep, and it was with difficulty that he
could rouse him, and it was a minute before he could be got to recognize
witness and a friend who was with him. He looked strange and wild, and very
much altered since witness had seen him the last time spoken of above.
Appellant went down into town with witness and friend that night, and
separated from them about one o'clock. Did not tell witness there was any
business difficulty between him and deceased. Witness knew of no difference
between the two before the killing, and thought they were friends. Witness
left early next morning, and was shipping cattle during the day at Johnson
FOSTER's pens, where he heard of the killing.
*4 Henry EVANS, for the defence, testified that in 1862, when appellant was
a boy about fourteen years of age, he (witness) travelled with appellant and
his father from Jackson County, some 150 miles, to the city of Austin. On
the road the father told witness that appellant was subject to spells of
strange ways, and that, as his mother could not manage him, he was afraid to
leave him at home. When his father left camp he always asked witness to
watch appelant.?? Witness observed no marked evidences of insanity in
appellant during this trip; he was wild and frolicsome, like other boys.
Col. WEBB, the father of appellant, was then enrolling officer, and had five
conscripts and guard in charge.
Frank TAYLOR, for the defence, testified that he was, on September 2, 1876,
bar-keeper at the Fitzpatrick Hotel, where appellant always boarded when in
Galveston. He had been boarding there a long time. He had been absent some
little time before the killing, and came back three or four days before the
killing, looking very much changed. His eyes were wild and bloodshot, and
his face swollen, though he had not been drinking to excess. Was drinking
then less than witness had ever known him to drink. He would sometimes sleep
very profoundly, and the two nights before the killing, witness heard him
walking all through the night; and when asked what was the matter, he would
say nothing, and talked but very little. During the day he would go into the
sitting-room, sit down, pull his mustache, and talk to himslf.?? His conduct
was so strange that both witness and FITZPATRICK remarked it, and declared
that something was the matter with him.
On the day before the killing, deceased rode up before the bar-room and
asked witness if appellant was in; and witness called appellant, who went
out. The two shook hands friendly, and had a long talk, and when deceased
rode off they shook hands again, and witness heard deceased ask appellant to
come to see him. Appellant then came in, and slapped witness on the shoulder
and said, "Let us take a drink, I have settled my business with Charles
FOSTER," and seemed to be very happy over it. After awhile he came back and
asked me to take another drink, and those two drinks were the only ones I
saw him take after he had got back to the city.
After the second drink, appellant went back to the same place in the
sitting- room where he had passed the two previous days in such a strange
manner, and seemed to relapse into the same moody way, having nothing to say
to any one. That night he slept but little, but walked; and next morning he
asked witness for his coat, which was behind the counter. He then went out,
and returned sometime later and asked for his pistol, which witness had
taken out of the coat pocket and put under the counter. Witness told him he
would be arrested for carrying concealed weapons, and asked him what he was
going to do with it. He responded that he was a policeman, and was going on
duty, and that he had lost his badge. He was looking very wild and strange,
and not drinking at all. He went out in a great hurry, and witness saw no
more of him until he came back in the custody of James CAHILL, and took a
drink; when CAHILL told witness what had happened, appellant appeared
careless and indifferent, and looked just as he did before he left. Witness
has never testified before, though he has been here three times. This is the
first time this case was ever called for trial during the attendance of
witness. Was not here at the mistrial. Was attached three days ago by the
sheriff, and brought here. Does not recollect the date of the killing. It
was in September, 1876. Does not recollect that the appellant was in
Galveston in August, 1876. Doesn't know the date of the killing,--it may
have been on the 26th. Witness's employment with FITZPATRICK ceased on
September 1st, but witness did not go out of the house. Went back into his
employment on the 2d.
*5 A hypothetical case was then put to Dr. O. H. SEEDS, from the standpoint
of the defence, and the doctor testified that it indicated the acts of an
insane man.

Upon cross-examination, the State stated a hypothetical case from its
standpoint, and the doctor testified that upon such a view they were the
acts of a sane man.
Dr. TURNER's testimony was substantially the same.
Dr. COCHRAN, upon a hypothetical case stated by the prosecution, stated that
the acts would be those of a sane man, and as presented by the defence, said
they indicated insanity; but he could not understand appellant's walking a
mile or so, although it might be explained or called "method in madness."
No brief for the appellant has reached the reporters.
Thomas BALL, Assistant Attorney-General, for the State. In this cause two
questions present themselves.
1. Was it error to overrule appellant's motion for a continuance? It is
thought not. The grounds set out in the application for the various
witnesses' evidence were to prove appellant's curious, weird, wild, and
vacant looks, in order to show insanity, etc. In order to get a continuance
on this ground, the court must be satisfied of "the materiality of the
evidence." The court below, in the exercise of judicial discretion, held the
contemplated evidence worthless, and refused the continuance. The statement
of facts shows, beyond question, that there were many witnesses before the
court on the final trial of appellant, put there by him to testify as to his
mental condition on and about the time of the murder. So it will appear that
no wrong was done him for the want of other witnesses on the question of
pretended insanity, and he should not be heard to complain.
2. In the motion for new trial, the main question raised is that the jury
acted improperly during the trial (not after the cause was submitted to the
jury). During the trial the jury did not act so as to make an exception to
the ordinary rule, and bring their action in this trial within the exception
laid down in EARLY v. The State but will be
controlled by the general rule as given in DAVIS v. The State; The State v.
FORNEY; The People v. MONTGOMERY; The State v. MORPHY; ELLIS v. PONTON.
As to the wild, weird looks of appellant, indicating insanity, as set out in
the last motion, it is submitted that if every word relating to the insane
condition of defendant, as stated in the motions for continuance and new
trial, were true and had been proven on the trial, there would have been no
difference in the verdict, because none of the statements indicate insanity,
but only extraordinary actions, as forerunners of his contemplated deed.
HALBERT v. The State.
*6 The transcript herein presents the only case of record (if appellant was
in fact insane) where an insane person admits it. All the records of all the
asylums in the world fail to show where an insane inmate has admitted his
insanity. The reverse, though, is true with lunatics,--all are crazy except
the lunatic. And it is submitted to the court that this peculiarity is a
matter of history as to lunatics, and that the bare fact of a person
asserting and swearing to his own insanity is sufficient ground for any
court to overrule such sworn statement for a continuance, because such
assertion at once judicially informs the court that the affiant is sane. But
in this cause appellant had a fair hearing on insanity. All was submitted to
the jury by the charge of the court, after much evidence was heard as to the
pretended mental aberration; so, it seems, no wrong could have resulted from
being forced into the trial.
It is presumed that the motion to quash was waived and not acted on, as the
record is silent. There does not appear any error in the charge of the
court.

WHITE, J.
It is a wise as well as most humane provision of our law that "no act done
in a state of insanity can be punished as an offence." With regard to murder,
it is specially declared a part of the
definition of the crime that it is the act of "a person with a sound memory
and discretion."
On the other hand, it is equally as well settled, both in law and in reason,
that every man is presumed to be of sane mind until the contrary is shown. "In
criminal cases, in order to absolve the party
from guilt, a higher degree of insanity must be shown than would be
sufficient to discharge him from the obligations of his contracts." "In all such
cases the jury are to be told that every man is
presumed to be sane, and to possess a sufficient degree of reason to be
responsible for his crimes, until the contrary is proved to their
satisfaction; and that, to establish a defence on the ground of insanity, it
must be clearly proved that, at the time of committing the act, the party
accused was laboring under such a defect of reason, from disease of the
mind, as not to know the nature or quality of the act he was doing, or, if
he did know it, that he did not know he was doing wrong. The mode of putting
the latter part of the question to the jury on these occasions has generally
been, whether the accused, at the time of doing the act, knew the difference
between right and wrong; which mode, though rarely, if ever, leading to any
mistake with the jury, is not deemed so accurate when put generally and in
the abstract as when put with reference to the party's knowledge of right
and wrong in respect to the very act with which he is charged."
Mr. BISHOP says: "The inquiry is directed to the particular thing done, and
not to any other; because, as we have seen, a man may be responsible for
some things while not for others. Of course, also, it has reference to the
time of the transaction, not to any other time. The reader, however, should
distinguish these questions from questions concerning the proof; for, to
ascertain the state of the mind at a particular period, we may inquire into
its condition both before and after in relation to a particular subject, its
condition as to other subjects."
*7 Evidence of the state of the mind of the party both before and after the
act done is admissible in determining the question of sanity.
Another rule, equally well settled, seems to be that "if derangement or
imbecility be proved or admitted at any particular period, it is presumed to
continue until disproved, unless the derangement was accidental, being
caused by the violence of a disease. But this presumption is rather matter
of fact than law, or, at most, partly of law and partly of fact."
Whatever may have been the rules of evidence heretofore with regard to the
character of proof admissible on the subject of insanity, the doctrine that
non-professional witnesses should be allowed to state their opinion as to
the sanity of the party, derived from their acquaintance with and
observation of his conduct, appearance, and actions, has become too well
settled to admit of doubt or controversy at this time. HOLCOMB v. The State;
MCCLACKEY v. The State, decided by this court at the Tyler
term, 1878.
We are aware that in GEHRKE v. The State, our Supreme Court, following in
the wake of the decisions in Massachusetts and New Hampshire, held
otherwise. The subject has, however, of late years been more
thoroughly examined and discussed; and in New Hampshire particularly, in the
recent case of HARDY v. MERRILL, FOSTER, C. J., of the Circuit Court, in a
most elaborate opinion, concurred in by the Supreme Court, reviews the
previous decisions and overrules them, which places that court in full
accord with the English and American doctrine as it now generally obtains on
that subject. The case of GEHRKE v. The State
has been practically, as we have seen, and will be hereafter considered as
overruled on this point.
Now, from what has been stated above, it necessarily follows that there are
no definite limits within which the evidence can be restricted on an inquiry
of this sort. Nor is the investigation one in which the judge could well say
that additional evidence would be but cumulative of like testimony already
adduced; for the greater the number of witnesses who would depose to the
opinion that a party was insane, the more likely would the jury, we
apprehend, be inclined so to believe and become satisfied of the fact.
In the case at bar, the defence was insanity. An application for continuance
was made on account of the absence of six of defendant's witnesses, all of
whom had been duly attached, and were under bond to appear and testify. The
facts to which they would depose are fully set out in the application, and
it contained the opinions of those witnesses as to the insanity of the
defendant, gathered from their associations with him, and their observations
of his conduct, language, and appearance for some weeks prior and down to
and including the very day of the killing, both before and after the act.
*8 This application was, moreover, in strict compliance with the
requirements of the statute. No reason is given by the court for its action
in overruling it, and we are left to infer that it was upon the ground that
the evidence was deemed immaterial or inadmissible. We do not think so; on
the contrary, it appears to us both material, admissible, and pertinent to
the issue to be decided; and its materiality becomes much more apparent when
we consider it in connection with the evidence actually adduced for the
defendant on the trial. How far these witnesses can be relied upon for the
truth, or how far their testimony might have influenced the action of the
jury in finding their verdict, it is impossible for us to say. As presented
to us, the application for continuance was sufficient, and should have been
granted.
In reversing the case, we deem it necessary to refer to certain acts of
misconduct (complained of) on the part of the jury and the officers having
them in charge, which, to say the least of it, does not comport with our
ideas of the serious solemnity of the duty of those having in charge the
life of a fellow-being. The jury were allowed to have and drink several
bottles of whiskey, some of which were conveyed to them by the officer
having them in charge. Had any one of them become intoxicated to such an
extent as to render it probable his verdict was influenced thereby, it would
have been the duty of the court below to have granted a new trial.
Again, one of the jurors was permitted to make, and did make, a horse-trade
with another party, who was not upon the jury. It is true, the officer says
it was done in his hearing and presence, and no injury, perhaps, was done
the defendant under the circumstances. Still, such things are calculated to
throw suspicion upon a verdict; and a verdict in a case involving the
momentous issues of life and death should be above suspicion, and command
entire confidence.
Because the court below erred in overruling defendant's application for a
continuance in the first instance, and afterwards erred in refusing a new
trial, the judgment is reversed and the cause remanded.
Reversed and remanded.

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