SUPREME COURT RECORDS PAGE 6

 

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

a statute punishing the theft of "cattle."

 

*1 APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

R. C. Stafford, for appellant.

George Clark, Attorney General, for the State.

 

 

REEVES, ASSOCIATE JUSTICE.

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

ground:

Because the indictment on which the defendant was tried is defective in this: said

indictment does not describe the property therein alleged to be stolen as coming

within the meaning of the term "cattle" as used in the statute.

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

the value of five dollars, the property of Pat Thomas.

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

steal any cattle, he shall be punished by confinement in the penitentiary not less than

two nor more than five years (Act of May 17, 1873, Paschal's Dig., art. 766.)

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

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

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

complaining of the charge of the court and the verdict of the jury cannot be revised;

and no error appearing on the face of the proceedings, the judgment is affirmed.

AFFIRMED.

Tex. 1876.

ZACK BERRYMAN v. THE STATE.

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

END OF DOCUMENT

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

cow, steer, ox, and the like-without use of the generic term "cattle," and it was not

error to overrule a motion to quash an indictment for theft of a "beef steer," on the

ground that the indictment failed to allege that the animal was of the "species of

cattle."

 

*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.

The opinion of the court sufficiently states the case.

Jones & Sayres and J. P. Fowler, for the appellant.

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

 

 

WINKLER, J.

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

on a charge of unlawfully and fraudulently taking from the possession of G. H. Jenkins,

without his knowledge or consent, and with intent to convert to his own use, "a certain

yellow and white pieded beef steer."

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

defendant with the commission of a felony, and fails to do so in that the property alleged

to be stolen is not alleged to be of the species of cattle." The motion to quash was

overruled by the court, and the defendant excepted.

The ruling of the court on the motion to quash is made a ground in a motion for new trial,

which was also overruled. The defendant was then tried on a plea of not guilty, found

guilty by a jury, and his punishment assessed at confinement in the state penitentiary

for a period of four years, and judgment entered accordingly.

An appeal is taken on the following assignment of errors:

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

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

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

Considering the several alleged errors in the order of presentation, as to the 1st we

need do no more than say we have examined the charges as given by the court, and, when

taken in connection with those given at the request of the defendant, we are of

opinion that the law of the case, as made by the evidence, was correctly given to

the jury, and as favorably for the accused as the testimony warranted.

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

not maintainable. Those portions of the several charges refused which were at all applicable

to the case are embraced substantially in the charges given. The remaining portions were

inapplicable, and could only have tended to confuse the minds of the jury.

As to the remaining error assigned--to wit, the overruling of the defendant's motion for

new trial--we are of opinion this ruling of the court below was proper. The question of

the guilt or innocence of the accused was fairly submitted to the jury. The evidence on

the part of the prosecution was sufficient to fix on the defendant the wrongful taking

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

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

justify us in concluding that the jury exceeded the bounds of a proper discretion in

fixing the punishment as they have done, it being within the limits prescribed by the

statute. The prosecuting witness proved ownership in himself, not in Burleson.

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

indictment. The indictment charges theft of "a beef steer." The objection urged against

it is that it fails to allege that the animal was of the "species of cattle."

Repeated decisions of the supreme court show that in charging theft of cattle it is only

necessary to charge the species--as cow, steer, ox, and the like-- without the use of

the generic term, "cattle." This was settled law in Texas before the organization of

this court, and, as an investigation of the authorities will abundantly show, correctly

settled. See The State v. Lange, 22 Texas, 591; The State v. Eisenheimer, decided Austin,

1875; Parchman v. The State, decided Tyler, 1875; Hubotter v. The State, 32 Texas, 483.

In Parchman v. The State reference is made to the following: Bishop on Stat. Crimes, sec.

440, refers to The State v. Pearce, Peck, 66; The State v. Hambleton, 20 Mo. 452; The

State v. Abbot, 20 Vt. 537; Tyler v. The State, 6 Humph. 285; Whart. Am. Cr. Law, 4th ed.,

sec. 377, and references there made.

The indictment in this case, in using the word "beef steer," is sufficient, without the

statutory word "cattle," and the motion to quash was properly overruled.

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

argument, and have not found anything which would warrant us in reversing the judgment

of the district court of Bastrop county rendered in this case.

Affirmed.

Tex.Ct.App. 1876.

GEORGE ROBERTSON v. THE STATE.

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

END OF DOCUMENT

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

 

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

witnesses, where accused had caused them to be attached, and they had given bonds for

their attendance, and did attend court until the day of trial, when they left without

his procurement, and where accused was reasonably certain of being able to compel their

attendance at the next term, though there was another witness who could testify to the

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

seeing accused convicted.

 

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

TURNER.

John Dowell and Phil. Claiborne, for the appellant.

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

 

 

ECTOR, Presiding Judge.

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

J. W. Mears. He was tried January 11, 1876, found guilty, and his punishment assessed

at five years in the penitentiary. Defendant made an application for continuance,

January 11, 1876, which was overruled upon certain grounds stated by the judge in the

court below; to which ruling the defendant took a bill of exceptions.

After giving the style and number of the case, the court and term, the following is a

copy of defendant's application for a continuance:

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

person, who, after being by me duly sworn, upon oath says that defendant cannot safely

go into trial in said cause at this term of the court for want of the testimony of

Charles Cottingham, William Litton, and Bat Lane, all of whom are resident citizens of

the county of Bastrop, and state of Texas, whose testimony is material to aid defendant

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

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

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

said gelding affiant is charged to have stolen from one James Fuller, and paid him

therefor a reasonable consideration, and that affiant's connection with said gelding

is perfectly innocent, and in perfect conformity with law. That affiant has used

due diligence to procure the attendance and testimony of said witnesses at this

term of the court, by causing an attachment to be issued to said county of Bastrop

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

upon said witnesses by the sheriff of Bastrop county, and the bond of said witnesses

taken by said sheriff of Bastrop county, on the 15th day of April, 1875, for the

appearance of said witnesses at the next term of the court thereafter, and from day

to day until this case was tried; and that said witnesses have, since said bond

was taken, been in regular attendance upon this court, except upon this day, and

that affiant does not now know why said witnesses are not in attendance; that said

witnesses are not absent by the procurement or consent of affiant; that this

application is not made for delay; that the testimony of said witnesses cannot

be procured from any other source; and that affiant has a reasonable expectation

of procuring the attendance of said witnesses in this cause at the next term of

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

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

application for continuance. The district judge, in overruling the application

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

grounds:

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

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

witnesses.

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

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

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

person could not be procured, that reason should be stated in the affidavit."

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

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

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

Defendant states that he had an attachment issued for his witnesses on the 10th

day of March, 1875, which was served upon them by the sheriff of Bastrop county,

and their appearance bonds taken by him, on the 15th day of April, 1875, for the

next term of the district court of Williamson county, and from day to day until

the case was tried; and that his witnesses, since the taking of their bonds, had

been in regular attendance upon the court, except upon the day when the case was

tried. The defendant used all the diligence the law required to procure the attendance

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

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

question as to when the court commenced or when it adjourned. If appellant's

witnesses had been attached, and were under bond for attendance upon the court,

to testify for the defendant in this case, and had appeared from day to day

until the day when the case was called for trial, and were then absent without

his procurement or consent, we think he had used due diligence, and that he

is not to blame for their non-appearance.

The application states that the testimony of the witnesses cannot be procured

from any other source. We believe this is a sufficient answer to the 2d ground

assigned by the judge for overruling defendant's application. The defendant

distinctly states that the testimony he desires could be proved only by the

witnesses he had attached.

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

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

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

express it.

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

application he did, it is probable that Fuller committed the theft himself, or

that defendant had reason for thinking so, and, if so, he reasonably believed he

could not prove that he purchased the gelding from him, the said Fuller, by

Fuller himself.

The statute prescribes the conditions upon which continuances are granted, and

a party will be entitled to a continuance when he brings himself strictly within

the terms of the statute. That bad men will avail themselves of this rule, to

delay or defeat the ends of justice, would be a good reason to change the law

in regard to granting continuances; whilst the law remains as it is, we should

enforce it. We deem it unnecessary to notice the other points mentioned in

defendant's assignment of errors.

*3 The judgment is reversed and the cause remanded.

Reversed and remanded.

Tex.Ct.App. 1876.

WILLIAM PERKINS v. THE STATE.

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

END OF DOCUMEN

 

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

 

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

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

for their attendance, and did attend court until the day of trial, when they left

without his procurement, and where accused was reasonably certain of being able to

compel their attendance at the next term, though there was another witness who could

testify to the facts expected to be proved by the absent witness, such witness being

interested in seeing accused convicted.

 

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

John Dowell and Phil. Claiborne, for the appellant.

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

 

 

ECTOR, Presiding Judge.

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

J. W. Mears. He was tried January 11, 1876, found guilty, and his punishment assessed

at five years in the penitentiary. Defendant made an application for continuance,

January 11, 1876, which was overruled upon certain grounds stated by the judge in

the court below; to which ruling the defendant took a bill of exceptions.

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

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

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

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

cannot safely go into trial in said cause at this term of the court for want of

the testimony of Charles Cottingham, William Litton, and Bat Lane, all of whom

are resident citizens of the county of Bastrop, and state of Texas, whose testimony

is material to aid defendant in his defense in said cause. Affiant says that he

expects and can prove, by each and every one of said witnesses, that affiant is

not guilty of the charge as alleged in said indictment filed in this cause; and,

further, that affiant bought and purchased said gelding affiant is charged to have

stolen from one James Fuller, and paid him therefor a reasonable consideration,

and that affiant's connection with said gelding is perfectly innocent, and in perfect

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

and testimony of said witnesses at this term of the court, by causing an attachment

to be issued to said county of Bastrop for said witnesses on the 10th day of March,

A. D. 1875, which was duly served upon said witnesses by the sheriff of Bastrop

county, and the bond of said witnesses taken by said sheriff of Bastrop county, on

the 15th day of April, 1875, for the appearance of said witnesses at the next term

of the court thereafter, and from day to day until this case was tried; and that

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

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

are not in attendance; that said witnesses are not absent by the procurement or

consent of affiant; that this application is not made for delay; that the testimony

of said witnesses cannot be procured from any other source; and that affiant has a

reasonable expectation of procuring the attendance of said witnesses in this cause

at the next term of the court;" which was duly signed and sworn to before the clerk

of the court.

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

for continuance. The district judge, in overruling the application for continuance,

as stated in said bill of exceptions, did so on the following grounds:

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

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

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

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

might be obtained; at any rate, if there was any reason why such person could not be

procured, that reason should be stated in the affidavit."

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

brief, we simply say that no better diligence could have been used by appellant to

obtain his witness than was used by him and stated in his application. Defendant states

that he had an attachment issued for his witnesses on the 10th day of March, 1875,

which was served upon them by the sheriff of Bastrop county, and their appearance bonds

taken by him, on the 15th day of April, 1875, for the next term of the district court

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

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

court, except upon the day when the case was tried. The defendant used all the diligence

the law required to procure the attendance of said witnesses, and the fact that he was

out on bond would not authorize or require him to take other steps to secure their

attendance, and it is an immaterial question as to when the court commenced or when

it adjourned. If appellant's witnesses had been attached, and were under bond for

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

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

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

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

The application states that the testimony of the witnesses cannot be procured from

any other source. We believe this is a sufficient answer to the 2d ground assigned

by the judge for overruling defendant's application. The defendant distinctly states

that the testimony he desires could be proved only by the witnesses he had attached.

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

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

application, has done so in a particular way, and used certain words to express

it.

 

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

application he did, it is probable that Fuller committed the theft himself, or that

defendant had reason for thinking so, and, if so, he reasonably believed he could

not prove that he purchased the gelding from him, the said Fuller, by Fuller

himself.

The statute prescribes the conditions upon which continuances are granted, and a

party will be entitled to a continuance when he brings himself strictly within

the terms of the statute. That bad men will avail themselves of this rule, to

delay or defeat the ends of justice, would be a good reason to change the law

in regard to granting continuances; whilst the law remains as it is, we should

enforce it. We deem it unnecessary to notice the other points mentioned in

defendant's assignment of errors.

*3 The judgment is reversed and the cause remanded.

Reversed and remanded.

Tex.Ct.App. 1876.

WILLIAM PERKINS v. THE STATE.

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

END OF DOCUMENT

 

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

 

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

 

Where, clearly, the evidence does not warrant a conviction, the appellate court will reverse.

 

*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.

 

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

and, with force and arms, take from his person and possession $245 in silver coin

and current money of the United States, specifically described.

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

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

19, 1877, between eleven and twelve o'clock, as he was proceeding along a public

road, in Bastrop County, two men on foot came suddenly out of the brush and

demanded his money. The defendant was one of the men. He held a pistol on witness

while his companion rifled his pack and secured the money. They gave back to

witness $5 of his money, and told him that they lived in the neighborhood, and

would kill him if he said anything about the matter. The witness described the

money as alleged in the indictment, and was positive that the accused was one of

the two men who took it. The accused was not disguised in any way, but his

companion--a black-haired, dark-complexioned man--had a handkerchief over his

nose and mouth. The witness gave information immediately of the robbery.

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

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

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

One of the witnesses for the State saw the two men described by the others

passing a freedman's house while the peddler was there, about nine o'clock in

the forenoon; but this witness did not know the accused to have been either

of the two.

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

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

localities and distances not distinctly disclosed.

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

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

of the evidence.

G. W. Jones, for the appellant.

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

 

 

WHITE, J.

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

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

His defense on the trial below was an alibi, and the only question raised on this

appeal in the able oral argument and brief of the distinguished counsel for

appellant is whether the evidence, as developed by the statement of facts, is

sufficient to uphold the verdict and judgment.

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

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

question of the defendant's guilt, for he, the witness, unequivocally and

positively identifies him as the unmasked party who held the cocked pistol presented

whilst his companion searched and got possession of the money. And we further confess

that a thorough examination of the whole evidence has led us to the conclusion that

the jury were fully warranted in the conclusion they arrived at--that defendant was

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

fixes defendant about the time and place of the commission of the crime, which has not

been successfully met, much less overcome, by his supposed alibi, and the proof adduced

to sustain it. This evidence all tends in such a manner to corroborate and support the

direct and positive testimony of the man who was robbed as to force the conviction upon

our minds that the defendant is one of the guilty parties.

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

appears that their finding is against the evidence, this court has invariably refused

to disturb the verdict." Jordan v. The State, 10 Texas, 479; Shaw v. The State, 27

Texas, 750; March v. The State, 3 Texas Ct. App. 335.

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

concurring in this finding, and further believing that defendant has had a fair and

impartial trial, during which no material error was committed, the judgment of the

court below is in all things affirmed.

Affirmed.

Tex.Ct.App. 1878.

B. F. BALTZEAGER v. THE STATE.

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

END OF DOCUMENT

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Evidence to corroborate the testimony of an accomplice must, of itself, and without

aid from such testimony, tend in some degree to connect the accused with the

commission of the crime; but the corroborative evidence need not suffice of itself

to establish the guilt of the accused.

 

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

MOORE.

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

Black, a negro, by eight of his negro neighbors, instigated by revenge and guided by

superstition and imposture. The facts have been fully disclosed in the opinion rendered

by this court in the case of Jackson v. The State, 4 Tex.App. 292.

No brief for the appellant.

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

 

 

ECTOR, P. J.

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

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

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

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

2. The verdict is not supported by the evidence.

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

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

motion for new trial is the only error assigned by the appellant. The charge of the

court properly presented the law of the case to the jury. The main question arising

on this appeal is whether or not there was sufficient corroboration of the evidence

of the accomplice to justify a conviction of the appellant.

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

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

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

corroboration is not sufficient if it merely shows the commission of the offense."

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

provision of the statute, the corroborating evidence must, of itself, and without the

aid of the testimony of the accomplice, tend, in some degree, to connect the defendant

with the commission of the offense. It need not, of course, be sufficient to establish

his guilt; for, in that event, the testimony of the accomplice would not be needed.

Nourse v. The State, 2 Texas Ct. App. 304; The People v. Coonan, 50 Cal. 449.

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

of the accomplice, to prove that John Black was forcibly taken from his house on the

night of December 24, 1876, by a crowd of men, carried about one mile and a-half, and

there murdered, as charged in the indictment, by them; and other evidence, besides that

of the accomplice, tending to connect the appellant with the commission of the crime.

This is another branch of the case of Burrill and Smith Jackson v. The State of Texas,

decided by this court during its present term, and we deem it sufficient to refer to the

opinion therein rendered for a decision of the questions in the case at bar. 4 Tex.App

. 292.

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

minute comparison of the testimony, it is only necessary to state that the evidence is

sufficient to sustain the verdict.

*2 We have given this case the consideration which its momentous issues involve, and we

are clearly satisfied that no substantial right of the appellant has been interfered

with on the trial. The entire record discloses to us no error in the proceedings of the

court below.

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

Affirmed.

Tex.Ct.App. 1878.

PRIOR JONES v. THE STATE.

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

END OF DOCUMENT

=======

 

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

sufficient to sustain a conviction.

 

 

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

requirements, are addressed to the discretion of the court, and should be granted or

refused according to circumstances.

 

 

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

he expected to prove an alibi had been confined in childbirth the preceding week, and,

being still unable to obey process, none had been obtained to produce her, was a proper

exercise of judicial discretion; the application, which was insufficient as a statutory

application, being addressed to the discretion of the court.

 

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

accomplice as a witness, and the court instructed the jury that his testimony implicating

those not on trial need not be corroborated, and, having otherwise charged the law

controlling accomplice testimony, instructed that contradiction or want of corroboration

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

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

evidence, or otherwise erroneous.

 

*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.

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

of this court, which, in its recital, follows the language of the statement of facts.

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

deceased; and the record shows the terrible issue which imposture and superstition can

engender out of ignorance.

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

death followed, in conformity with the law.

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

Robinson, William Peterson, Prior Jones, Steve Robinson, and one Sam, whose name was

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

witnesses call Sam Squirrelhunter, the fortune-teller.

G. W. Jones, D. B. Orgain, D. Moore, and John B. Rector, for the appellants.

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

 

 

WINKLER, J.

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

County for the murder of one John Black, alleged to have been committed on December 23,

1876. These appellants were jointly tried, separately from the others, at the October

term, 1877, of the court, were convicted of murder in the first degree, and have taken

this appeal.

On the eve of the trial the appellant Burrill Jackson moved the court to grant him a

continuance, and made an affidavit in support thereof, in which he stated "that he

cannot safely go to trial at this term of court, on account of the absence of Betty

Jackson, a material witness for his defense. Defendant says he expects to prove by

said witness that he was not present on the day and at the place when and where the

murder of John Black is said to have taken place, but that, at the time and on the

day said John Black was murdered, defendant was at home with said Betsy Jackson, and

was not present then, or at any other time, when John Black was murdered. Defendant

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

impossible for her to have come to court, she, the said witness, having, on last Friday

, been delivered of a child, and is still in child-bed, unable to answer to any process

of this cause."

It was further stated in the affidavit that the witness resided in Bastrop County, and

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

asked for delay. The motion was also supported by the affidavit of one Hubbard, as to

the residence and physical condition of the witness, in which it is stated she lived on

affiant's place, six miles from the town of Bastrop, and fixing the date of her

confinement as October 19, 1877. The indictment was filed April 25, 1877; the application

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

to when the accused was arrested.

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

refused. To this ruling of the court the defendant excepted, and in certifying to the

bill of exceptions the presiding judge appends the following explanation:

"The court believed, from the length of time since the arrest of defendant without any

process to said witness, that said application was not made in good faith, but for

delay."

The refusal of the court to continue the case is the basis of the first error assigned,

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

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

518, governing a first application for a continuance of a criminal case by the defendant,

for the want of an absent witness (Pasc. Dig., art. 2987), it must be held insufficient

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

to procure the attendance of the witness, which is required by the statute. Wall v. The

State, 18 Texas, 693; Baker v. Kellogg, 16 Texas, 117; Murry v. The State, 1 Texas Ct

. App. 174; Grant v. The State, 2 Texas Ct. App. 163.

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

requirements, are addressed to the discretion of the court to whom they are made, and

should be granted or refused according to the circumstances, and will not be revised

on appeal except in a clear case of abuse of that discretion. Baldessore v. Stephanes,

27 Texas, 455; Nelson v. The State, 1 Texas Ct. App. 41.

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

the bounds of settled rules of practice. Mr. Wharton says "the general rule is that

a continuance will be granted on an affidavit setting forth the absence of a material

witness, and alleging that his attendance will be procured at the next court, and

that due diligence has been used in attempting to procure his attendance." Whart. Cr.

Law, sec. 2930. But "a continuance will not be granted on such an affidavit when the

prisoner has been guilty of laches or delay, or of any connivance." Ibid., sec. 2932 b.

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

the next court.

In Hyde v. The State, 16 Texas, 445, we find authority on the proposition we are

considering. Mr. Justice Wheeler, in delivering the opinion, makes the following apt

quotation from the opinion of Sutherland, J., in The People v. Vermillyea, 7 Cow. 390:

"The rule is substantially the same in civil and criminal cases, though in the latter

the authorities all agree that the matter is to be scanned more closely, on account of

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

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

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

been laches, or there is reason to suspect that the object is delay, the judge at the

circuit may take into consideration all the circumstances, and grant or deny the application

at his pleasure. When the subject takes this turn, the application ceases to be matter

of right, and rests in discretion."

*3 From this opinion we make this further extract: "In the case of Rex v. D'Eon, 3 Burr.

1513 (s. c., 1 W. Bla. 510), the principles upon which courts are to act in postponing

the trial of a cause on account of the absence of witnesses are clearly laid down, and

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

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

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

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

reasonable expectation of his being able to procure their attendance at the future time

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

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

of the defendants for a continuance on the grounds set out as above? From the facts that

the indictment was filed in April, and no legal effort made to secure the attendance of

the witness until October; that the object of obtaining the witness was to prove an alibi,

a fact not shown to have been exclusively within the knowledge of the absent witness; the

application not being in compliance with the statute, and not meeting the rules as above

laid down, either in Hyde v. The State or by Mr. Wharton, nor showing that there was a

reasonable expectation of procuring the attendance of the witness at the next term of the

court, we are of opinion that there were sufficient grounds to justify the court in

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

judicial discretion in overruling the application for a continuance of the case.

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

the call of the special venire over objections of defendants' counsel, as set forth

in the bill of exceptions."

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

the proceeding, but at what stage is not shown by the record, it appeared that five

persons whose names were on the copy of the venire served on the defendant, though

upon the regular jury drawn by the jury commissioners, had not been served by the sheriff;

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

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

the court proposed to suspend the call and order attachments for the absent jurors, which

offer was declined by the defendants; and, with reference to the last objection, it is

stated in the bill of exceptions that "the call of the venire was proceeded with without

opposition, and the jury was made up without exhausting said venire."

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

When the copy of the special venire was served, if there was any objection to it, exception

should have been taken to it in writing, so as to have the matter settled by the court

before proceeding to impanel the jury, and in the manner pointed out by chapter 3 of the

Code of Criminal Procedure. Pasc. Dig., art. 3031 et seq. The court was not expected

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

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

acquiescence of the accused in the completion of the panel without objection.

*4 The case of Bates v. The State, 19 Texas, 122, cited by counsel, is not analogous to

the present case, and does not support the views contended for by the counsel. For aught

that is shown from the record, the jury was selected without the accused having

exhausted their peremptory challenges, and from the special venire served upon them;

and it is not made to appear that the jury was anything else than a fair and impartial

one in all respects.

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

with propriety, be considered in connection. They are set out in the transcript as

follows:

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

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

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

adduced on the trial, as it is by the testimony, under the pleadings, that the

sufficiency of the charge must be tested. It is in this manner we ascertain what is

the law applicable to the case upon the questions involved as they arose upon the

trial. It may not be amiss to state, in this connection, that a witness who acknowledges

himself to have been a participant in the alleged murder, or, at any rate, present when

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

it necessary for the court to instruct the jury on the law as to the value of the

testimony of an accomplice, and the necessity of corroboration to warrant a conviction.

 

That portion of the general charge on the subject is in the following language, which,

for convenience, we have separated into paragraphs and numbered:

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

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

tending to connect the defendant with the offense committed; and the corroboration

is not sufficient if it merely shows the commission of the offense.

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

who are on trial with the offense, then it is immaterial if there is not corroborating

testimony as to other parties not on trial.

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

you are examining into.

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

immaterial, is of no consequence in determining the guilt of the defendants."

And immediately following is this further instruction:

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

you will acquit such."

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

out in the argument of counsel for appellants as being a charge upon the weight of the

evidence, and calculated to mislead the jury in determining the question of the guilt

or innocence of the accused.

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

portions which immediately precede, and which immediately succeed, the portion

complained of, we are of opinion that, presuming the jury to have been composed of men of

ordinary intelligence, it was not liable to the objections urged against it by the counsel.

If we bear in mind that the jury had just been charged that they would not be authorized

to convict upon the uncorroborated testimony of an accomplice, and that, in order to

convict, they must believe that there is corroborating testimony tending to connect the

defendants then on trial with the commission of the offense--all of which was correct

law, as has been repeatedly held, both by the Supreme Court and this court--we fail to

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

them; and no injury could have resulted to the defendants by the jury being told that

it was immaterial whether there was corroborating evidence as to other parties not on

trial, or instructed as in paragraph 4 of the charge as set out above; and, especially,

as they were told, in very pointed and expressive language, that "it was alone the

defendants on trial whom you are trying, and whose guilt or innocence you are

examining into." The charge asked by defendants on the subject, whilst more full,

is not a more accurate enunciation of the law than that given by the court. The court

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

trial, and none other, and to the vital proposition in the case. The rule laid down

by the court is substantially the rule prescribed by the Code, as follows:

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

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

the corroboration is not sufficient if it merely shows the commission of the offense."

Code Cr. Proc., art. 653 (Pasc. Dig., art. 3118).

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

murdered, but it must tend to connect the defendants with the murder. As to who are,

in law, accomplices, in the sense requiring corroboration to convict, see Davis v. The

State, 2 Texas Ct. App. 588, and authorities there cited, and Jones v. The State, 3

Texas Ct. App. 575.

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

are of opinion that there was no such error in the charge of the court as given, or

in refusing the instructions asked by the defendants, as would warrant a reversal of

the judgment.

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

of error: Did the court err in overruling the defendants' motion for a new trial? The

main ground in the motion, not already considered, is that the verdict is contrary to

the law and the evidence.

 

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

Bastrop County, at a dead hour of the night, and most brutally murdered, about the time

charged in the indictment. The main question on the trial was to ascertain who were the

guilty perpetrators of the deed, and whether these appellants were of the number.

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

testimony of the alleged accomplice:

"George Veal, witness for the State, says that he knows the deceased, John Black; knows

Smith Jackson and Burrill Jackson, the defendants in this case; says they are in court,

and parties defendant; that he [witness], Bill Peterson, Tom Robinson, Sam Squirrelhunter,

Burrill Jackson, Smith Jackson, Hoodlin Henry [Henry Owens], Mose, Prior Jones, Richard

Gradington, and Freeman Shelton, took John Black out and hung him, about one and a-half

miles from John Black's residence, in Bastrop County, state of Texas; hung him by the

neck and left him dead. Smith Jackson, Burrill Jackson, Freeman Shelton, Sam

Squirrelhunter, Bill Peterson, and Mose Thomas were appointed at a meeting for

the purpose, and were the parties that went into the house of John Black, about

twelve o'clock, dragged him out, tied his hands behind him, and carried him off."

 

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

Henry's child. Had three meetings at three different times before hanging; had a

meeting on the night of the hanging, and two other meetings on two other nights.

That witness, Prior Jones, Steve Robinson, Richard Gradington, and Tom Robinson

met at first meeting; that at third meeting, no one present but those at Black's

house. Smith Jackson and Burrill Jackson were not present at two first meetings.

At time of hanging, at which meeting Sam Squirrelhunter, Bill Peterson, Mose

Thomas, Smith Jackson, Burrill Jackson, and Freeman Shelton were appointed to

go in the house and bring deceased out; and those six did go in the house and

brought him out. Some light in the house; could see these parties in the house;

so dark could not distinguish them from where I was; parties were disguised.

If had not known who the parties were, could not have distinguished or recognized

them, or known who they were. Hoodlin Henry [Henry Owens] was round at the back

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

Prior Jones rode the mule that dragged the deceased. That if the deceased had

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

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

did not tell, to hang him. Tom Robinson was only one in favor of hanging him any

way; that the agreement was to go and take John Black out and scare him. They

thought, by threatening to hang him, he would tell where the child was; that they

believed he [Black] knew what had become of the child. That they had searched for

the child, and could not find it; child been gone about six weeks, and was last

seen with boys of deceased. The missing child was about six years old. That they

sent for the man Squirrelhunter, that said he was a fortune-teller and could tell

all about the missing child, and that Squirrelhunter came and met with them in

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

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

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

and when John Black was hung, Prior Jones, Sam Squirrelhunter, Tom Robinson,

Henry Owens, Richard Gradington, and witness; don't know whether the defendants,

Smith Jackson and Burrill Jackson, were at the hanging or not; they started

from the house with John Black, and were with him a hundred yards from the house.

Henry Owens held rope and pulled deceased up; let him [deceased] down, and

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

child was; and Tom Robinson cried, 'Hang him! that he would ruin all of them if

turned loose,' and so they hung him up, and tied the rope, and left him hanging.

Witness couldn't see defendants at the tree, because so dark; could only recognize

voices as would speak; but there were others present at the hanging, but I could

not distinguish them in the dark. That some parties that went to the house had

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

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

the perpetration of the murder and conversant with the purposes, plans, motives,

and intentions of the parties who committed the act, and who was, and we think

properly, regarded at the trial as a participant in the commission of the crime,

and whose evidence it became necessary to corroborate by the testimony of other

witnesses, not only as to the fact that John Black had been murdered, but tending

to connect these appellants with the commission of the crime.

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

Barbary Black testified that she was in the house from which the deceased was taken

out and hung. She says: "The confusion and noise waked me up; did not know time of

night; was some fire in the house, a chunk burning; took one of the parties to be

Hoodlin Henry, and one to be Bill Peterson, and one, uncle Smith Jackson; did not

know for certain it was either; was very much frightened."

James Hord testified "that Burrill Jackson had borrowed his coat the night John Black

was hung, after supper; that it was a bluish coat, cloth; had it about two years;

borrowed it after supper, at house of defendant Burrill Jackson. I stayed at my cousin's,

about one hundred yards from defendant Burrill Jackson; that he told Eliza, the wife

of deceased, on the next Tuesday following, that he loaned his coat to Burrill Jackson

on that night."

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

Black's dead body into Burrill Jackson's horse-lot; and that two of the tracks stopped

there, and two or three went on. The two horses in Burrill Jackson's lot were horses

trailed from the tree to which Black's body was hung. One of the horses that made the

tracks was in Burrill Jackson's lot, and was his horse. It rained on the night of the

hanging, just before Black was taken from his house, so that the tracks of the parties

who did the hanging could be easily traced--all tracks before the rain being completely

blotted out by the rain, and those made after the rain being very plain." Agreeably to

the testimony of this witness, the deceased was hung on the place of the witness.

Eliza Black, who appears to have been the wife of the murdered man, was on the stand as

a witness for the State, and from her testimony, as set out in the statement of facts,

we make the following extract:

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

last Christmas some parties came to John Black's house, suppose about midnight, masked,

and took John Black out and hung him. They broke the door down, and four of the parties

came into the house; that the names of the four who came in the house were Tom Robinson

, Bill Peterson, Smith Jackson, and Burrill Jackson, and that they had guns in their

hands; that they told John Black to march out, and took John Black out and carried him

off. Witness saw John Black, deceased, next day when he was brought back home; he was

then dead. This occurred in Bastrop County, state of Texas, on Saturday night before

last Christmas, being about nine months ago. I recognize Smith Jackson and Burrill

Jackson, the defendants now in court, as two of the parties who came into the house

and carried John Black away."

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

that Burrill Jackson had on Jim Hord's coat, and that she only recognized the parties

in the house from their general appearance, but knew them; that she knew the defendants

well, having lived close to them for about five years.

This testimony, we are of opinion, affords, if true, a sufficient amount of corroboration

of the testimony of the supposed accomplice to entitle his evidence to consideration

by the court and jury.

The evidence was all before the jury. Not only the words spoken by the witnesses, but

their manner and bear??ng whilst testifying in a most momentous investigation, were

open to view and to cross-examination, as well as to the comment and criticism of

counsel. The jury must have believed the testimony, else they could not, under the

charge of the court, have found the defendants guilty. The whole case, with its

evidence, again passed in review before the judge on the hearing of the motion for

a new trial, and the testimony was again held to be sufficient to support the

verdict. This court would only be justified in setting aside a verdict upon the

evidence when it is shown that the verdict is against the evidence, or without a

sufficient amount of legal testimony to justify a conviction for the crime. We

fail to discover any error in the action of the court below in refusing a new

trial.

A point is made in argument to the effect that the evidence tends to show that, by

the treatment the deceased is shown to have received at the hands of the mob who

finally hung him, he had been deprived of his life before he was finally hanged by

the neck, either by roughly being dragged away to the final scene or by strangulation

by the rope fastened about his neck, by which he was dragged along; and it is not

to be denied there is some testimony tending in that direction. Yet this but creates

a conflict in the testimony at most, with which it was the peculiar province of the

jury to deal, and is wholly irreconcilable with the history of the transaction

as detailed by the accomplice, supported, as we have seen, by other testimony. As

to the sufficiency of the testimony, the court below was in a better condition to

determine than this court, who have but the bare record as a guide, whilst, below,

the witnesses were personally present.

We are not unmindful of the importance of the opinion now being rendered, or of

the solemn responsibility resting upon the court in passing upon the merits of this

case as shown by the record before us, and we have brought to its determination the

most careful attention, without discovering that the appellants have not had a fair

and impartial trial, in which every material right of theirs has been carefully guarded;

and they having been legally adjudged guilty of having participated in the perpetration

of a heinous crime, upon a sufficiency of competent testimony, our duty is plain.

The judgment of the District Court is affirmed.

*9 Affirmed.

Tex.Ct.App. 1878.

BURRILL AND SMITH JACKSON v. THE STATE.

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

END OF DOCUMENT

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A detective employed by merchants to discover who burglarized their store, agreed

with defendant and another, who were suspected of the crime, to break into and rob

the store. The merchants furnished the detective with a key, and were prepared to

arrest the parties when the entry was effected. Held that, since the conspiracy

was complete when defendants entered into the agreement, their guilt was not

affected by the subsequent consent of the merchants and the co-operation of the

detective in the entry of the store, if neither the merchants nor detectives

suggested the offense or originated the criminal intent or agreement.

 

The crime of conspiracy to commit an offense is complete when the conspirators enter

into the criminal agreement, and notwithstanding they do not proceed to consummate

it.

 

 

The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a

lawful act for an unlawful purpose, and the offense is complete when the confederacy

is made.

 

Where a merchant employed a detective to discover who entered and robbed his store,

and the detective at his instance consorted with two persons whom the merchant suspected

were guilty, and they agreed with each other and the detective to break in and rob it,

and the merchant afterwards furnished the detective with a key to get in, and prepared

to arrest them when it was done, the conspiracy was complete when the agreement was made;

and hence their amenability for the conspiracy was not affected by the merchant's

subsequent consent, and the cooperation of the detective in effecting the entry, unless

the merchant or the detective suggested the offense or instigated the agreement.

 

*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.

Charley Foster, the detective, testified for the state. According to his testimony the

burglary was first suggested by the appellant. The substance of his statements, in

other respects, is condensed in the third head-note. On his cross-examination he denied

that, on the day after the store was entered, he told L. Johnson, at Johnson's store,

in Bastrop, that it took him two or three weeks to get Hand and the appellant to

consent to break into Higgins & Garwood's store; and, further, denied that, at a

certain bar-room in Bastrop, a few days after the burglary, he stated that he got

$50 for getting the boys into the store, and that he would catch anybody for that amount.

L. Johnson, testifying for the defense, explicitly contradicted the first of Foster's

denials; and D. C. Claiborne, also for the defense, contradicted the second.

All other facts of any materiality are indicated in the opinion.

G. W. Jones and J. P. Fowler, for the appellant, filed an able brief.

George McCormick, Assistant Attorney General, for the State.

 

 

ECTOR, P. J.

The appellant and N. S. Hand were jointly indicted for a conspiracy to commit burglary.

The defendant, Johnson, was alone tried. The jury found him guilty as charged in the

indictment, and a judgment was rendered adjudging the defendant guilty of a conspiracy

to commit robbery. Because of this error in the judgment it must be reversed.

The judge charged the law, in substance, as embraced in articles 6576 and 6577,

Paschal's Digest, as follows: "A conspiracy is an agreement entered into between

two or more persons to commit" any offense, such as burglary. "The offense of

conspiracy is complete, although the parties conspiring do not proceed to effect

the object for which they have so unlawfully combined."

It is insisted by defendant that the charge of the court in this case is defective

in this, that it fails to give the law as embraced in articles 6578 and 6579,

Paschal's Digest. A critical examination of the entire charge will show that it

is not liable to objection on this account.

The second error assigned is that the court erred in refusing to give the charges

asked by the defendant.

The court, in its general charge, had already, among other instructions, told the

jury that, "If you believe from the evidence that defendant did, as charged in

the indictment, conspire with N. S. Hand to commit burglary, you will convict. If

you believe from the evidence that Higgins & Garwood did employ a detective merely

to discover and secure the parties they suspected of robbing their store, and that

the original intent, if any, to commit the offense was not influenced or suggested

by the detective, then the agreement of said detective to enter a conspiracy would

not excuse the defendant. But if said detective suggested the offense, and in

any way created the original intent and agreement to commit the same, you will

acquit. If either Johnson or Hand did not enter into the agreement, then you

will acquit."

*2 The case at bar is different from that of Pigg v. The State, 43 Texas, 108,

and of Speiden v. The State, 3 Tex.App. 156, decided by this court at its last

Tyler term, which are cited by defendant's counsel. In the former the defendant

and Thomas Smith were indicted for the theft of a horse, and the state was

required to show that the horse was taken without the consent of the owner.

Pigg and Smith were suspected of being engaged in horse-stealing; Christian,

the alleged owner of the horse, requested one Snyder to get into the confidence

of the defendants and learn whether they were horse-thieves or not; which Snyder

did. Pigg and Smith told him that they had Christian's horse picked out, and

Snyder agreed with them to engage in stealing the horse. Witness Snyder so

conducted the affair that he was present when defendants, Pigg and Smith, took

the horse and led him out of the stable, when they were arrested. Christian

testified that he had given no consent that his horse should be taken, but

corroborated Snyder in the arrangement by which the defendants were detected.

The court held that it is not consent to the taking for the owner to obtain the

aid of a detective who, for the purpose of detection, joins the defendant in a

criminal act designed by the defendant and carried into execution by actual

theft; but that, if Christian or the detective suggested or induced defendant

to steal the horse, and, having induced such original intent, he, or the person

acting for him, acted as one of the party throughout, then the want of consent

would not be established, and the defendant should be acquitted.

And in the other case, that of Speiden v. The State, the defendant was indicted

for burglary by breaking into a bank, with the intent to commit theft. The facts

in that case show that defendant had entered the bank at the solicitation of a

detective rightfully in possession with the consent of the owner; and this court

held that he could not rightfully be convicted of burglary, no matter what his

guilty intent.

In the case now before the court, it will be borne in mind that the offense is

complete under the indictment when it is shown that defendant had actually entered

into an agreement with N. S. Hand to burglariously enter the house described in the

indictment, in the manner as therein alleged, with intent to commit a theft, and

that the offense of conspiracy is complete although the parties conspiring do not

proceed to effect the object for which they have so unlawfully combined. The fact

of such conspiracy once being established, the subsequent consent of the owner

(or those acting for him) for the conspirators to enter the building will not

affect their guilt in the least, unless the evidence shows that Higgins and Garwood,

or the detective employed by them, suggested the offense, or in some way created

the original ??ntent or agreement to commit the offense as charged.

The exception to the charges given, and to the refusal of the court to give the

instructions asked by defendant, are not sustained by an examination of those

charges. Those given were substantially correct, and those asked by the defendant,

and not embraced in the general charge, were ??ramed in language more favorable

to the accused than the ??tatement of facts and the law would justify.

*3 We believe that we have noticed all the errors assigned which may aid in any

manner in another trial of the cause, when the defendant will have an opportunity

to procure the newly-discovered evidence set out in his motion for a new trial.

The judgment is reversed and the case remanded.

Reversed and remanded.

Tex.Ct.App. 1878.

JOHN JOHNSON v. THE STATE.

3 Tex.App. 590, 1878 WL 8889 (Tex.Ct.App.)

END OF DOCUMENT

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APPEAL from the County Court of Travis. Tried below before the Hon. A. S. Walker.

 

*1 The indictment in this case was for bigamy. It charged that the appellant, having a

living wife, on the fourth day of December, 1881, unlawfully married one Rebecca

Garner. He was convicted, and was awarded one year's confinement in the penitentiary

as punishment.

John Crawford testified for the State that he knew the defendant and knew his first

and his second wives, both of whom he pointed out in court. The defendant's first

wife lives on Baldwin's place, in Bastrop county. They were married in April or

March, 1879, and immediately commenced the cultivation of a crop of corn. The

witness heard the defendant speak of having borrowed a horse from Charles Caldwell,

and riding to Bastrop county, where he got married. His first wife is a cousin

of the witness. The witness then lived in Hays county, and had lived in the same

neighborhood nine years. When the witness went to Bastrop county in March or

April, 1879, defendant and his first wife were living together as man and wife,

and the defendant told the witness that he and the witness's cousin (the first

wife with whom he was living) were married. The first wife is still living, and

lives on the same place. From the time the defendant and she were married, up

to the time when the witness left, in August, 1879, they lived together. The

witness has heard of the defendant living in Hays and Travis counties. He lived

with this first wife in Hays county for a short time. The witness first heard

that the defendant had married again in April, 1882, and with his second wife

was living on Bear Creek. The witness had never heard the defendant say that

he was married to this last wife.

 

Cross-examined, the witness testified that he had known the defendant for fifteen

or sixteen years, and declared that he and the first wife were married in

Bastrop county. He had heard the defendant so assert the fact, and knew that

they lived together as man and wife. They separated in August, 1879. The

defendant was a man of poor education and could neither read nor write. The

witness was a man of limited education, but could read a little, and could

sign his name. He identified a letter offered in evidence as one which the

defendant showed him at a camp on Bear Creek, but declared that he did not

know who wrote it. He did not write it, nor did he ever see it until the

defendant showed it to him on the occasion spoken of. The witness saw J. Crawford

on the day that he first saw the letter and talked to him about it. He told J.

Crawford that he did not write the letter, and that it was his impression that

it was written by the defendant's first wife. Witness told his uncle

(J. Crawford presumably) that he did not know Caroline's handwriting, and

that the handwriting looked more like that of his, witness's, wife, or of

Miss Martin, than it did like the handwriting of the defendant's former wife.

The witness reiterated, on re-examination, that he did not write the letter,

and that he did not know who did. He did not know that he had ever seen

handwriting similar to it. The letter was signed with the witness's name,

but the name was not correctly spelled. The name to the letter was signed

""Crofford," whereas his name properly spelled was "Crawford." The witness's

wife and Miss Martindale knew how to spell his name. The second wife was

present when the defendant showed the witness the letter. He brought the

letter to the witness from his camp. The first wife, before her marriage

with defendant, was a widow, named Catherine Peebles.

*2 Frank Brown, county clerk of Travis county, being sworn, produced the

record of marriages, showing a marriage license issued to defendant and

Rebecca Garner, December 13, 1881, and returned executed by D. C. Pace,

justice of the peace.

D. C. Pace testified that, in December, 1881, he was a justice of the

peace in Travis county, and as such performed the marriage ceremony

between the defendant and Rebecca Garner, at Jake Crawford's place, in

Travis county. Jake Crawford, the witness's father, and some children,

were present.

The letter referred to reads as follows:

"Nov. 18, 1881, Bastrop County.

Mr. Thomas Watson:

It is with pleasure that I sit down to inform you that I am well, and hope

you are the same. Tom, I am sorry to tell you that your wife is dead and

has been for a week, but I suppose as you and her is separated, you do not

care to hear anything about it. Times is good here, and I wish you would

come down and see us and spend a few days and talk of old times. I have not

much to say this time, but write and let me know how you are getting along.

Hoping to hear from you soon,

I remain your friend,

JOHN CROFFORD."

Rebecca Garner testified, for the defense, that she could neither read nor

write, but she had seen the letter used in evidence. The defendant brought

it to her, sealed up. She opened it and laid it away ten days before she

and the defendant were married. The witness's daughter looked at it, but could

read only the first part of it. Her father, William Crawford, read a part of

it, and then the witness gave it to her brother. The witness, her daughter,

and her aunt took it to Mrs. Bates, who read it to her.

On cross-examination, the witness stated that she would not have married the

defendant had she known that his first wife was living, nor did she believe

that the defendant would have entered into a marriage with her if he had known

it. He told the witness of his living wife long before their marriage, and it

was understood between the two that he should secure a divorce, after which

they were to be married. The witness had no reason to doubt the statements of

the letter reporting the death of the defendant's first wife, and made no inquiry

concerning the truth of that report. The defendant had always treated her and

her children kindly. The two have not lived together since the first rumors that

the first wife survived commenced circulating.

Mary Crawford testified that she was sixteen years old, and was the daughter

of the last witness. She saw the letter in evidence when the defendant received it.

It was then opened, and postmarked "Caldwell P. O., Bastrop county." It was opened,

and the witness read part of it. It was then carried to Mrs. Bates, who read it

entire in the presence of the witness.

Jake Crawford, for the defense, testified that he was a brother to Mrs. Garner.

He was illiterate, and could neither read nor write. At the request of defendant,

the witness went to Bastrop county some three years ago to move him, and to prevail,

if possible, upon his first wife to return to him. She refused. The defendant did

not quit his first wife, but was driven off by her. She is a half sister to the witness.

The witness procured the license for the defendant to marry Rebecca Garner, his last

wife. He then knew of the letter reporting the first wife's death, and had he not

believed it, he would not have permitted this last marriage. John Crawford told the

witness that the handwriting of the letter looked like that of his wife or Mollie

Martindale, and that he did not write it.

*3 Madden, deputy postmaster at Oatmanville, testified that he remembered giving

the defendant a letter, about the last of November, 1881, which he supposed

came in due course of mail. It was the only letter he remembered that the

defendant ever received at that office.

H. C. Still testified that he had known the defendant for about four years.

He knew him to be very simple, but if he had any bad traits about him, the

witness did not know it.

Mary Crawford recalled, stated that she was mistaken in testifying that the

letter when received bore the "Caldwell P. O." postmark. It was postmarked

"""""Bastrop County," in a circle.

John Crawford in rebuttal testified that he lived within a mile of Caldwell

Postoffice. It is a small postoffice and has no stamp postmark. The postmaster

writes the postmark. The witness on cross-examination stated that he hated the

defendant.

The appellant's motion for new trial complained of the charge of the court, and

that the verdict was against the law and the evidence. The motion being overruled,

appeal was prosecuted.

 

 

An indictment for bigamy need not allege the name of the first spouse.

 

 

On a trial for bigamy, as to which the defense was an innocent mistake as to

the first wife's death, the judge charged that, if the mistake did not arise

from want of proper care, it constituted a defense, and then proceeded to

define what proper care was. Held, that this definition should not have been

given any more than of any common untechnical words.

 

 

Article 45 of the Penal Code, Vernon's Ann.P.C. arts. 40, 41, provides: "No

mistake of law excuses one committing an offense; but if a person laboring

under a mistake as to a particular fact shall do an act which would otherwise

be criminal, he is guilty of no offense." Article 46 of the Penal Code, Vernon's

Ann.P.C. art. 41, provides: "The mistake as to a fact which will excuse, under

the preceding article, must be such that the person so acting under a mistake would

have been excusable had his conjecture as to the fact been correct; and it must

also be such mistake as does not arise from a want of proper care on the part of

the person committing the offense". Held, that it was the duty of the court to

charge the substance of the above articles, leaving to the jury to determine from

the evidence whether or not the mistake of the defendant, if a mistake, arose

from want of proper care.

R. J. Hill and T. H. Wheless, for the appellant.

H. Chilton, Assistant Attorney General, for the State.

 

 

 

WILLSON, J.

The defendant was convicted upon an indictment, the charging portion of which is

as follows: "did then and there unlawfully marry Rebecca Garner, he, the said

Watson, then and there having a wife then living." Exceptions to this indictment

were overruled. The exceptions were, that it did not put the defendant upon notice

of the charges against him, in this: that it does not charge the name of the alleged

first wife of the defendant. While this indictment does not follow established

precedents (2 Whart. Prec. Indict, 985; 2 Archibold's Cr. Pr. and Pl., 1813; May

v. The State, 4 Texas Ct. App., 424), still we are not prepared to say that it is

a bad indictment. It charges the offense substantially in the language of the

statute, and ordinarily it is sufficient to do this. The weight of authority is

that it is not necessary to state the name of the first wife. (2 Whart. Prec.

Indict., 985, note c.) We are of the opinion that the exceptions to the indictment

were properly overruled.

The defense relied upon by the defendant was, that when he married the second wife

he believed that his first wife was no longer living. In support of this defense,

it was proved that the defendant resided in Travis county, and his first wife

resided in Bastrop county; that, a short time before he married the second wife,

he received a letter by mail, signed "John Crofford," and purporting to come

from Bastrop county, informing him of the death of his first wife. "John Crawford"

(the supposed writer of this letter) testified that he did not write it; that

he lived in Bastrop county, near defendant's first wife, and was well acquainted

with defendant; that his impression was, when he first saw the letter, that it

had been written by defendant's first wife, but he had told Jake Crawford, his

uncle, and a brother of defendant's second wife, that the handwriting of the

letter looked like that of his (John Crawford's) wife, or that of Mollie

Martindale. The witness Jake Crawford saw the letter, and being satisfied that

it was genuine, and that defendant's first wife was in fact dead, he consented

to his marriage with his sister. The second wife also testified that she saw

the letter, and, believing that it was all right, married the defendant. It was

also in proof that the defendant was illiterate-- could neither write nor read,

and was very simple.

*4 Under this state of facts, the court charged the jury as follows:

"A mistake by defendant as to the death of the first wife before the second

marriage, if such mistake did not arise from the want of proper care, will

excuse an act committed under such mistake. By proper care, which the defendant

must use, is meant such care as ordinary men would use to ascertain the truth

of a report of like importance upon which they may be required to act. If the

mistake is shown to have existed, and that it was not caused by want of such

proper care, the jury will acquit. If by such proper care defendant, from the

testimony, could have corrected the mistake, then the mistake, if it existed,

will avail nothing as a defense; but the jury may consider the belief by

defendant of his first wife's death, if such belief be shown, in mitigation

of punishment, should the defendant be convicted."

It is insisted by defendant's counsel that the foregoing charge is erroneous,

and, after a careful consideration of the question, we are of the opinion that

the latter clause of the same, which undertakes to instruct the jury as to the

meaning of the words "proper care," is erroneous, and should have been omitted

from the charge. We do not think that the court was called upon to explain

these words to the jury. They are not technical words having a fixed legal meaning

unknown to the unprofessional minds, but are plain, common, well understood

words, as easily comprehended as any used in the statute.

The Penal Code provides as follows:

"ART. 45. No mistake of law excuses one committing an offense; but if a person

laboring under a mistake as to a particular fact shall do an act which would

otherwise be criminal, he is guilty of no offense.

ART. 46. The mistake as to fact which will excuse, under the preceding article,

must be such that the person so acting under a mistake would have been excusable

had his conjecture as to the fact been correct; and it must also be such mistake

as does not arise from a want of proper care on the part of the person committing

the offense."

We think the learned judge should have given in charge to the jury, substantially,

the above articles, leaving the jury to determine from the evidence in the case

whether or not, under all the facts and circumstances of that particular case,

the mistake of the defendant, if he was mistaken, arose from a want of proper care

on his part. The question as to proper care, we think, depends upon the facts in

each particular case. No general rule can be prescribed in relation to it. What

would be proper care in one case might be gross negligence in another. What would

be proper care when considered with reference to one individual might not be when

applied to another. The learned judge, in the charge under discussion, defines

"proper care" to be such as ordinary men would use, etc. Why not also explain to

the jury what constitutes an "ordinary man?" Was the defendant an "ordinary man?"

Were the jury any more competent to determine this question without instructions

from the court than they were to determine the question as to what would constitute

proper care? We think the charge of the court was improper when applied to the

evidence in this case, in so far as it instructed the jury in the meaning of the

statutory words "proper care," and that it was calculated to injure the rights

of the defendant; and because of this error the judgment is reversed and the cause

is remanded.

*5 Reversed and remanded.

Tex.Ct.App. 1882.

TOM WATSON v. THE STATE.

13 Tex.App. 76, 1882 WL 9325 (Tex.Ct.App.)

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