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

*1 The indictment in this case charged the appellant with the theft of two horses,

the property of E. L. Norris, on the sixteenth day of May, 1883. The penalty imposed

by a verdict of guilty was a term of eight years in the penitentiary.

E. L. Norris testified, for the State, that he lived about twenty miles west of San

Antonio, in Bexar county, Texas. On the night of May 15, 1883, he turned his two

gray horses out to graze near his place, after having worked them all that day.

One of them was branded with an &, reversed, on the left shoulder; the other with the

letters cc on the left shoulder, and the device of a heart inverted, surmounted with

an upturned B, on the left hip. One of them was belled. The witness hunted for these

two animals all of the next day, when, not finding them, he became convinced that they

had been stolen, and accordingly addressed to the several counties postal cards

giving descriptions of them. After a time he received a letter from the sheriff of

Caldwell county, stating that two horses answering the description had passed through

Lockhart, going towards Bastrop. Ten days or two weeks later the witness received a

letter from sheriff Jenkins, of Bastrop county, stating that the horses were then in

Bastrop. Witness went to Bastrop immediately, and found his horses in the possession

of sheriff Jenkins, who delivered them to the witness. These animals were taken without

the knowledge or consent of the witness. The witness never saw the defendant before

he saw him at Bastrop, at the time he recovered his horses.

Mat. Luna testified, for the State, that he lived on the Brooks Duval place, near the

town of Bastrop. On or about May 20, 1883, the defendant and another Mexican named

Tomas Gonzales came to the witness's house with two gray horses corresponding to the

description given by the witness Norris. They remained at the witness's house two or

three days, during which time the witness purchased the horse branded & from the

defendant, and the other horse from Tomas Gonzales, and received from them respectively

the following bills of sale:

"BASTROP, May 22, 1883.

This is to certify that I have bargained, sold and delivered to Mat. Luna one (1) gray

horse branded cc on the left shoulder, and (B turned horizontally over an inverted heart)

on the left hip, about eight years old, for the sum of $45.00. This title I monarch and

defend against any person claiming the same.



Witness: H. C. KLEINERT."

"BASTROP, Bastrop Co., May 22, 1883.

This is to certify that I have bargained, sold and delivered to Mat. Luna, one (1)

gray horse, 14 hands high, 7 years old, branded & on the left shoulder, for the sum

of $40.00. This title I monarch and defend against any person claiming the same.



Witness: H. C. KLEINERT."

These horses the witness afterwards surrendered to Mr. Jenkins, the sheriff of

Bastrop county. The defendant told the witness that he had traded for the horse

branded & on the left shoulder, about fifteen miles beyond San Antonio. He did

not claim or sell the other horse, but was present when Tomas Gonzales sold him

to the witness. Defendant and Gonzales left the witness's house together. The

witness knew the defendant several years ago at San Antonio.

*2 W. E. Jenkins, sheriff of Bastrop county, testified for the State, that he

received a postal card from Norris, giving a description of the horses and

saying that they were stolen, and, finding them in the possession of Mat. Luna,

he seized them and notified Norris, who came to Bastrop and got them. He pursued

and arrested the defendant and Tomas Gonzales at Giddings, Texas.


The defendant introduced in evidence the following bill of sale:

"SAN ANTONIO, May 17, 1883.

Know all men by these presents, that I have this day sold to Mr. Fernando Rodriguez

Garcia, one gray horse, about 14 hands high, branded thus, & (reversed) on the left

hip, sold for the sum of $25.00, twenty-five dollars, money received to my

satisfaction in presence of witnesses, title of said horse I guarantee and







Norris, re-introduced by the State, testified that when he came to Bastrop for his

horses, he attended the examining trial of the defendant and Gonzales. They exhibited

on that trial a bill of sale, giving correct descriptions of the two horses. That

bill of sale was not the bill of sale exhibited on this trial. The two bills of sale

were on different kinds of paper, and bore different dates. The first one--the one

exhibited on the examining trial--correctly represented the & brand on the left

shoulder. That now introduced incorrectly represents that brand to be on the left

hip. The witness could not say that the defendant had and produced the bill of sale

described on the examining trial. It may have been produced by Tomas Gonzales.

W. E. Jenkins, recalled, testified for the State that the bill of sale now offered

in evidence was not the same that was produced on the examining trial. The one offered

in evidence before the examining trial was on different paper and was written in a

different handwriting. According to the recollection of the witness, that bill of

sale embraced both horses. Witness could not recollect whether that bill of sale

was produced by the defendant or by Tomas Gonzales. It was not returned to either

the defendant or Gonzales, but is now lost.

The motion for new trial assigned as error the refusal of the court to grant the

appellant a continuance, on the showing disclosed in the opinion of this court.




A continuance, in a criminal case, should be granted because of the absence of a

witness whose testimony clearly was material to the defense; the facts set forth

in the application showing ground for a continuance, and appearing to be probably




Where the prosecution relies solely upon circumstantial evidence, the court must

always instruct as to the law controlling such evidence.

No brief for the appellant has reached the Reporters.

J. H. Burts, Assistant Attorney General, for the State.




On the night of the fifteenth of May, 1883, two horses were stolen from E. L. Norris,

in Bexar county. On the twenty-second day of May, 1883, these horses were sold to one

Luna, in Bastrop county. One of the horses was sold to Luna by the defendant and the

other by a Mexican named Gonzales, and they executed bills of sale, respectively, to

Luna. Defendant was indicted and convicted for the theft of both horses. The indictment

was returned into court October 17, 1883, and the trial was had on the twenty-fourth

day of October, 1883.

*3 Defendant made an application to continue the case, which was refused. This

continuance was sought because of the absence of one Ramon Casas, alleged to be

a material witness in behalf of defendant, and who resided in Bexar county,

Texas. On the seventeenth day of October, 1883, the day on which the indictment

was returned into court, the defendant applied for and obtained an attachment

for this witness to Bexar county, which attachment was returned endorsed by

the sheriff of Bexar county as follows: "Came to hand on the twentieth day of

October, 1883, and not executed. The within named person is not to be found,

as he is temporarily absent from the county. Might return at any time; and, as

the writ is returnable instanter, I cannot hold it over."

In his application, defendant stated that he expected to prove by this witness that

he, defendant, purchased, in good faith, the horse he sold to Luna from one J. R.

Smith, on the seventeenth day of May, 1883, two days after said horse was stolen,

and five days before he sold the same to Luna; and that said Smith executed to

defendant a bill of sale of the horse, which bill of sale said witness signed

as a witness; and that said witness was present when defendant purchased the horse.

In all respects the application complied with the requirements of the law, and

accompanying it, and made a part of it, was a copy of a bill of sale from one J.

R. Smith to the defendant, dated May 17, 1883, witnessed by Ramon Casas, and

describing the horse sold by defendant to Luna, and which was one of the stolen


There can be no question but that the testimony of this witness was material to

the defendant's defense. Were the facts set forth in the application probably

true? If so, it was error to refuse defendant's motion for a new trial. (Code Crim.

Proc., Art. 559.)

There is nothing in the evidence adduced on the trial which is inconsistent with,

or which renders improbable, the claim of the defendant that he purchased the

horse he sold to Luna from one Smith. It is not shown that he had possession of

the other stolen horse, or was connected with the theft of it. any further than

that he was in company with Gonzales, who claimed, also, to have bought it from

another party. We can see no reason why it should be held that the facts set forth

in the application for a continuance were not probably true. We think the court

erred in refusing defendant's motion for a new trial.

This being a case of purely circumstantial evidence, it was incumbent upon the

court to instruct the jury upon that character of evidence, which the court failed

to do.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Tex.Ct.App. 1883.


15 Tex.App. 120, 1883 WL 8991 (Tex.Ct.App.)




Appeal from district court, Williamson county.

This conviction was in the second degree, for the murder of James Davis, on the

fifteenth day of June, 1886. A term of five years in the penitentiary was the

penalty awarded.

Stated in brief, the proof shows that the deceased, who was the step-father of

Miss Mattie Bains, and the brother-in-law of the defendant, left his old home,

in Bastrop county, Texas, on the fourteenth day of June, 1886, to remove to Bell

county, taking Miss Bains and his own smaller children with him; the party traveling

in a wagon drawn by four horses. On the evening of the thirteenth, Miss Bains sent word

to her grandmother, defendant's mother, that she did not want to go to Bell county

with Davis, but wanted to take up her abode with her. Defendant, on the morning of

the fifteenth, ascertained that Miss Bains had gone off with deceased. He, and a

relative named Dunbar, followed Davis, with the avowed purpose of taking Miss

Bains back to her grandmother's, if she was being taken off against her will,

but not to interfere if she was going voluntarily. Defendant and Dunbar overtook

deceased's wagon as it was going into camp at noon on the next day. Defendant

and deceased addressed each other in friendly terms, and, while the latter was

gone with two of his horses for water, defendant asked Miss Bains if she was

going off voluntarily. She replied that she was, and defendant remarked that

he had nothing more to say. When Davis returned with the horses, defendant

asked why he did not take the children by to bid their relatives adieu. Davis

asked in reply angrily, and with an oath, if that was why defendant followed

him. Defendant replied that it was. The two then approached each other.

Defendant then stepped back, and Davis, having nothing in his hands,

continued to advance. Defendant ordered him three times to stop. Davis

continuing to advance, (though making no hostile demonstrations,) the

defendant drew his pistol and shot Davis dead. A large butcher knife,

such as it was shown by the evidence, Davis usually carried in his belt,

was found on the ground near the body, after the homicide.



Objection to irregular or insufficient manner of presenting and entering

indictment must be raised by motion to quash and exception to denial of

the motion. It cannot be taken for the first time on appeal.



In a trial for murder, the fact that a butcher knife is found near the deceased,

under such circumstances that it might well have been dropped by somebody else,

coupled with the evidence of several witnesses that when deceased was killed he

was unarmed, and that directly afterwards the defendant, in speaking of the

killing, said nothing about the knife, but forthwith fled the country, held not

to support the plea of self-defense, so as to vitiate a conviction of murder

in the second degree.



The clerk of the trial court is not required to enter upon his minutes the name

of the offense charged against an accused, and the fact that he misnamed the

offense on his minute book cannot vitiate the indictment.


An indictment which concludes with the phrase, "against the peace and dignity

of the state," is not vitiated by any words following that phrase, if they form

no part of it.

**583 *196 G. W. Jones and Fisher & Townes, for appellant. Asst. Atty. Gen. Davidson,

for the State.




It is objected to the indictment that it does not conclude, "against the peace and

dignity of the state," and is therefore a nullity. The original indictment is before

us, and we find that the words, "against the peace and dignity of the state," follow

immediately after the charging portion of the indictment, and on the last words used

by the pleader. In the next line below these words, and without any grammatical or

other connection therewith, in a different handwriting from that of the indictment,

are the words, "A true bill," followed immediately, and in the same handwriting,

by the official signature of the foreman of the grand jury. We hold that these

interpolated words, "A true bill," do not vitiate the indictment. They are no

part of the indictment; are outside of and wholly disconnected with it. They

are no part of the conclusion of said indictment, and in this respect the case

differs materially from that of Haun v. State, 13 Tex. App. 383, as will be seen

by reference to that decision. The language of that decision may be, and we think

is, too broad and unqualified, but the conclusion arrived at with respect to that

particular indictment *197 was, we still hold, correct; for the reason that the

words following the conclusion proper were connected with said conclusion in the

same sentence, and manifestly formed a portion of said sentence; and therefore

the indictment upon its face did not conclude as required by the statute and the

constitution. We are of the opinion that, when the indictment upon its face

shows the pleader's conclusion to be "against the peace and dignity of the state,"

these words forming a complete sentence, no words following thereafter, and not

forming a part of said sentence, can vitiate the indictment.

Another objection to the indictment is for the first time presented in this court.

It is that it affirmatively appears from the record that the said indictment was

not presented in open court by the grand jury. The record shows the file number

of the cause in the district court to be 706; the charge in the indictment being

murder. The entry upon the minutes of the said court of the presentment by the

grand jury of indictment No. 706 names the charge in said indictment, "An assault

with intent to kill." Upon its face the indictment shows that it was presented

in the district court by a legal grand jury. This recital in the indictment must

be presumed to be true until it is shown to be otherwise. It devolves, therefore,

upon the defendant to show that the indictment was not in fact presented in court.

How and when does the law permit him to make such question? We answer, by exception

to the indictment, which exception must be made before a plea of not guilty is

entered. It cannot be entertained when made for the first time in this court.

Hardy v. State, 1 Tex. App. 556; Alderson v. State, 2 Tex. App. 10; Strong v.

State, 18 Tex App. 19; De Olles v. State, 20 Tex. App. 145.

But even if the objection now for the first time urged had been made in limine

in the trial court at the proper time, and in the proper manner, we do not

think it would have been a valid objection to the indictment. It is only

required that the style of the action and the file number of the indictment

shall be entered upon the minutes. Code Crim. Proc. art. 415. In this

instance this requirement was fulfilled. It was not essential that such

entry should name the offense charged in the indictment. Steele v. State,

19 Tex. App. 425. Not being essential to the sufficiency of the entry to name

the offense charged, it was an unnecessary act on the part of the clerk to do

*198 so,and should not be held to vitiate the indictment, although the offense

named in said entry is not the offense charged in the indictment.


It is earnestly contended by counsel for appellant that the evidence is

insufficient to sustain the conviction, in this: that the evidence in support

of the plea of self-defense is at least cogent enough to raise a reasonable doubt

of the **584 guilt of the defendant. In this view of the evidence we do not

agree with counsel. We do not think the facts show, or even strongly tend to

show, that character of self-defense which would either justify or reduce the

homicide to manslaughter. If the deceased, at the time he was shot, had been

advancing upon the defendant in an angry manner, armed with a butcher- knife,

then, indeed, would defendant's theory of self-defense be established. But,

unfortunately for the defendant, the evidence does not disclose such a state

of the case. On the contrary, all of the eye-witnesses to the transaction

testified on the trial that the deceased was unarmed at the time he was shot by

the defendant. They were in positions where they could and did see the deceased

at the time, and they saw no knife or other weapon on or about his person.

The only evidence which even remotely tends to prove that the deceased was armed

with a butcher-knife is that such a knife was found upon the ground where the

homicide occurred a short time after the difficulty, and that this knife belonged

to the deceased. How, when, or by whom the knife was placed upon the ground is

not disclosed. Deceased was at the time of the occurrence traveling in a wagon

with his family, consisting of several small children, and had stopped to camp

for dinner. These children were around the wagon, and may have had and dropped

the knife where it was found. Deceased may himself have dropped it before the

difficulty occurred. After defendant had shot deceased, witness Dunbar said to

defendant: "You have killed Davis!" Defendant replied: "Yes; he ought to have

kept off of me." Nothing was said by defendant at that time about the deceased

having a knife. If in fact deceased had been advancing upon the defendant with

a butcher-knife in his hand, and defendant had seen that he was thus armed, it

is passing strange that he did not mention the fact to Dunbar at the time of said

conversation, and call the attention of that witness to the knife. Instead of

doing so, however, he mounted his horse, and fled the country, and avoided trial

for a number of years.

*199 As to the charge of the court, it is full and correct, and fair and liberal

to the defendant, presenting clearly the law applicable to every phase of the

case made by the evidence.

We are of the opinion that there is no error in the conviction, and the judgment

is affirmed.

Tex.Ct.App. 1887.


4 S.W. 582, 23 Tex.App. 191






Appeal from district court, Bastrop county; H. TEICHMULLER, Judge.

On the 19th day of October, 1889, an indictment was preferred and returned by the

grand jury of Bastrop county against Ike Wilson, Runnels Williams, Bob Thompson,

Jesse Johnson, O. W. Wicks, York Aldridge, Fountain Moore, Ben Clark, George

Jones, and Milton Nobles, for the murder of George Schoeff and Alex. Nolan, in

said county, on the 13th day of June, 1889. On the 6th day of November, 1889,

defendants were duly arraigned, and, plea of not guilty being entered, a severance

was had upon motion of defendants, and the defendants O. W. Wicks, George Jones,

and Milton Nobles, appellants herein, were placed upon trial together, but

separately from their co-defendants. Being convicted of murder in the second

degree, the punishment of appellant O. W. Wicks was fixed at 20 years'

confinement in the penitentiary, and that of appellants George Jones and

Milton Nobles at confinement in the penitentiary for 17 years each. Wicks,

a negro, was justice of the peace, before whom the case of State v. Addie

Lytton, for assault and battery, was set for hearing on June 13, 1889. The

white people, fearing that Lytton would not be accorded a fair trial, went

armed to the place of trial. When the case was given to the jury, Lytton

walked out of the house, and it was then that the firing commenced. The

material part of the testimony of West Craft, for the state, was as follows:

"I was at Cedar Creek on the day of the shooting. I got there about 2 or

2:30 o'clock. I got down off my horse, and was talking with Jesse Johnson

and some boys. While sitting there, Cuffie Williams came up, beckoned, and

called me. I got on my horse, started towards him, and we met. As we started

off, O. W. Wicks, defendant, called me, and told me he wanted to see me.

Wicks was getting out one of the windows on the side of the court-house

next to Dick Lemuel's. I went to him, and he came up to me, and asked me

where I was going; I still being on my horse. He whispered to me, and

told me not to go away, and then made some remarks about the white people

being there. In the conversation, Wicks said for me not to go away; that

he had me deputized to help protect the court; that we would bring the

thing off directly, and that he wanted me to stay there, and wanted the

negroes to hang together, and 'kill as many of the devilish white folks

as they do of us.' Cuffie Williams and I then started off towards

Givensville. I heard Ike Wilson halloo: 'Halt,' or 'Come back.' About

that time, I looked back, and saw Ike throw up his gun; and a fire was

made, but I cannot say who made it. The shooting then all began, and

I shot, too. I shot in every direction. On the first Saturday after

the difficulty, I was arrested at Bastrop, and Wicks was at the court-house

when I was brought down there. Mr. Fowler was acting for the state, and fixed

up the papers against me. When first arrested, I requested to have a private

talk with Mr. Fowler; and Wicks was there, or came in there shortly afterwards.

While in the sheriff's office talking with Mr. Fowler, Wicks came in, leaned

over the table, and whispered to me, and told me not to give him away, or

tell anything on him; and I told him I did not know anything to tell. When

he left, Mr. Fowler asked me what he said, and I told Mr. Fowler." The theory

of the defense was that the whites had threatened to interfere with the

officers of the court in the discharge of their duties, to rescue Addie Lytton,

whose trial for assault was pending before the defendant Wicks, to accomplish

their purpose by force, and to kill Ike Wilson if necessary, etc.; that they

congregated in large numbers, several of them being armed, and took possession

under a mesquite tree a short distance from the front of the house; that,

when the jury in Lytton's case retired to deliberate on the verdict, Lytton

left the house; that Wilson, the constable, followed, and called to him to

await the verdict of the jury; that the whites then rose in mass at the cedar

tree, handed Lytton a gun, and opened fire on Wilson; and that Wilson did not

return the fire until he had been fired upon at least twice.



On the trial of certain negroes for the murder of certain white men,

a white man testified that a negro had told him that he heard one of the

negroes say that they were going to kill off the whites. Held incompetent,

as hearsay, and prejudicial to defendants.



On the trial of negroes for the murder of white men, testimony as to statements

made by some of the negroes, not on trial, in the absence of defendants, was

hearsay as to defendants.



On the trial of certain negroes for the murder of certain white men, testimony

as to statements made by some of the negroes, not on trial, in the absence of

defendants, was hearsay as to defendants, and incompetent, in the absence of

proof of a conspiracy to murder between defendants and those who made the

statements, and that the statements were made pending the conspiracy, in

furtherance of the common design.



A combination or conspiracy must be established before the acts, declarations, or

confessions of one alleged conspirator can be given in evidence against another.



Where the state introduces evidence of accomplices, the refusal of the court to

charge that a conviction cannot be had on the uncorroborated testimony of accomplices

is ground for reversal.



On the trial of certain negroes for the murder of certain whites killed in a fight

between whites and negroes at the trial of one L., before a negro justice of the peace,

the theory of the state was that the negroes started the difficulty in pursuance of a

previously formed conspiracy, and there was testimony tending to sustain this theory,

as well as that of defendants that the whites started the trouble pursuant to a

previous plan to interfere with the court. Held that, for the purpose of showing

that the whites went there with innocent motives, which would tend to show that

they were not the assailants, it was a proper question for the state to ask one

of them why he went there armed, and that his answer, "We went there to see that

no harm came to L.," was competent.

**749 *462 G. N. Jones and H. M. Garwood, for appellant. Asst. Atty. Gen. Davidson,

for the State.




O. W. Wicks, George Jones, and Milton Nobles, and several others, were jointly

indicted for the murder of George Schoeff and Alex. Nolan. The three above- named

defendants severed from their co-defendants, and were tried jointly. All three of

them were convicted of murder in the second degree, and from that conviction

jointly prosecute this appeal, assigning several errors.

The first assignment of error is that the court erred in admitting the *463

testimony of the witness W. R. De Bardeleben, as per bill of exceptions No. 1,

which bill of exception recites as follows: "W. R. De Bardeleben, a witness

for the state, was asked the question by the prosecuting attorney, 'What was

the reason you went down to the trial of Addie Lytton, the scene of the difficulty,

with a gun?' To which the witness replied: 'We went there to see that no harm

came to Addie Lytton, and because, several days before the difficulty, Alex. Nolan

, now deceased, had told me that he (Alex. Nolan) had heard Ike Wilson tell Robert

Thompson that he was going to summon a lot of men to the court, and kill off white

men, and that he was going to arrest Addie Lytton this time, and carry him to

Bastrop.' This witness further stated that Addie Lytton told him (the witness)

that he (Lytton) had heard that Ike Wilson had threatened to kill him, and that

he was afraid that Wilson would mistreat him at the trial; and that he (De Bardeleben)

had heard that Ike Wilson had arrested an old white man down on the river, and tied him,

refused him bail, and walked him to Bastrop. To which question and answer defendants

then and there objected for the reasons: (1) Same was hearsay; (2) irrelevant; (3)

the declarations of Ike Wilson or Robert Thompson were not admissible against these

defendants, or either of them, because the declarations were not made in pursuance

of a common design, and no conspiracy had been proved between these defendants, or

either of them, and Ike Wilson and Robert Thompson, or either of them. These

objections were then and there overruled by the court, whereupon defendants, by

counsel, excepted, and now here present their bill of exceptions, and pray that

same be signed, sealed, and made a part of the record." In approving said bill

of exception, the trial judge adds thereto an explanation that said testimony was

offered and admitted for the sole purpose of showing the motive of said witness

in going armed to the scene of the difficulty. It is sometimes relevant and

material to show the motive actuating the conduct of a witness; and, in the case

now under consideration, there can be no question but that it was material for

the prosecution to show, if it could, that the witness, and other white men who

went armed to the scene of the tragedy, went for a legitimate, innocent purpose,

and not for the illegal purpose of interfering with the court or its proceedings,

or with the execution of the law. There was much conflict in the testimony as to

which side, the whites or the blacks, began the difficulty which resulted so fatally.

On the part of the prosecution, it was and is contended that the blacks brought on

the fight in pursuance of a previously formed conspiracy. On the part of the defendants,

it was and is contended that the whites brought on the difficulty in pursuance of a

previously formed conspiracy. There is evidence tending to sustain both these theories.

In this state of case, it was relevant and material for the prosecution to show that

the whites, in going armed to the place of the difficulty, were influenced *464 by

innocent motives. Proof of innocent motives on their part would be a circumstance

tending to support the theory that they did not bring on the difficulty, but were

the assaulted party. We are of the opinion, therefore, that the question propounded

to the witness De Bardeleben was legitimate and proper. A portion of said witness'

answer to said question, to-wit: "We went there to see that no harm came to Addie

Lyton," was admissible. But the remainder of his answer to said question was

purely hearsay, and was not admissible for any purpose. When viewed in connection

with the facts of the case, this illegal testimony must have operated prejudicially

to the defendants; and its admission was therefore material error. Proof of motive,

like proof of any other fact, must be made by legal testimony.

The second and third assignments of error call in question the correctness of the

rulings admitting certain testimony of the witnesses Gus Randel and Joe Jackson as

to statements made by Robert Thompson and Runnels Williams, co- defendants in this

prosecution. These statements were not made in the presence of the defendants on

trial, and were hearsay as to them, and inadmissible against them, unless a

conspiracy to commit murder existed between said Thompson, Williams, and these

defendants, and unless said statements were made pending such conspiracy, and

in furtherance of the common design. As we view the evidence before us, the

testimony of said witnesses Randel and Jackson as to the statements made by

Thompson and Williams should not have been admitted, and its admission was

material error.

There are several assignments of error relating to supposed defects in the

charge of the court. No exceptions were saved to the charge; and, upon a

careful examination of the same in the light of the objections urged against

it, we think it is an able, clear, and correct exposition of the law applicable

to **750 the facts of the case, and free from any material error except in one

particular, which is, that it does not instruct the jury as to the rules governing

accomplice testimony. Such instruction was demanded, we think, by the testimony of

the state's witness West Craft. Said witness, by his own testimony, showed himself

to be an accomplice in the killing of the white men; and his testimony was

prejudicial to the defendants, and especially so to defendant Wicks. Defendants

requested a proper instruction as to accomplice testimony, which the court refused

to give; and in this, we think, material error was committed.

We deem it unnecessary to discuss other assignments of error, as some of the

matters complained of may not occur on another trial, and we find no material

errors except those we have mentioned; and because of which material errors the

judgment is reversed, and the cause is remanded.

Tex.Ct.App. 1890.


13 S.W. 748, 28 Tex.App. 448





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




Where the defendant in a murder trial applied for a continuance to have blood

stains on his clothes analyzed, and the murder occurred in October, and the

application was made in January following, no sufficient diligence was shown

to warrant the granting of a continuance.



Where the allegations in a bill of exceptions are contradicted by a statement

of the court annexed to the bill, such statement will be held to correctly

present the matter in issue.


Under Code Cr.Proc. art. 377 [Vernon's Ann.C.C.P. art. 358], providing that

any person, before the grand jury has been impaneled, may challenge the array,

or any person presented as grand juror, and in no other way shall objections

to the legality of the grand jury be heard, and that any person confined in

jail shall, on his request, be brought into court to make such challenge, the

provision that such person make such request is mandatory; and, unless he does

make such request, he cannot afterwards object that he was not allowed an

opportunity to challenge the array.




Defendant had, prior to the homicide, had several quarrels with deceased, and

on the night of the homicide was seen standing at her gate, quarreling with her.

Witness heard four blows struck, and heard deceased scream after the first blow.

Deceased's head was chopped to pieces by an ax, and defendant, when arrested,

had numerous blood stains on his clothes, which he accounted for by saying that

it was blood from a squirrel which he had dressed; but this was controverted by

his daughter, who testified that the squirrel had been given to her already

dressed. Held sufficient to support a conviction of murder in the first degree.



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




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




The caption of an act creating a new judicial district need not state the different

counties constituting such district, nor that one of the counties composing it was

transferred from some adjoining district; the omission of such statements therein

not being in violation of Vernon's Ann.St. Const. art. 3, § 35, providing that no

bill shall contain more than one subject, which shall be expressed in its title.


A verdict in civil, as well as in criminal, cases, may be lawfully received and entered

on Sunday.

**596 The following is the statement of facts.

*121 J. F. Nash, witness for the state, being duly sworn, testified as follows: "I

hold the position of marshal of the town of Bastrop. I heard of the killing of Jane

Wilkins, who was Oliver Wilkins' wife, on the night of October 15, 1892. It occurred

in the town and county of Bastrop, in the state of Texas. It was some time about

ten o'clock when I heard of it. When I got there I found the body laying in the

yard, between the two doors on the south side of the house. It was lying on the face,

with the hands under it. There were two deep gashes in the head, and one in the

shoulder. There was an ax lying beside the body, and covered with blood. There

was blood on the ground around the body, and blood on the wall of the house

near the body, as high as five feet from the ground. There was also a bloody

ax lying on the ground, near the body. Ben Holiday lives in the southwest

corner of the block on which the Wilkins house is situated. Darcas Gage lives

on the northeast corner, and the Wilkins house is on the northwest corner.

Ann Morrison and her husband, Frank Morrison, live across the street from

Oliver Wilkins,--directly north. I think the street is about fifteen feet

wide, and Morrison's house is some ten feet from the street. Oliver Wilkins'

house faces south. It is about sixty or seventy yards from deceased's house

to Ben Holiday's. It is about seventy-five to one hundred yards to John Kerr's

from Oliver Wilkins' house. There *122 was some blood on a top plank of Wilkins'

yard fence, south of the gate, made by finger prints. The finger prints,

in blood, were about two inches below the top edge of the plank, and the

plank was broken. Aleck Brown, the defendant, was arrested some time in

the summer before the killing occurred, for disturbing the peace; and he

pleaded guilty, and paid part of his fine, and worked the rest out on the

street. He was charged with disturbing the peace." Cross- examined: "Oliver

Wilkins, the husband of Jane Wilkins, the deceased, made the complaint against

Aleck Brown for disturbing the peace. The body of Jane Wilkins was found on the

south side of the house, a few feet from the door of the main room, nearest the door

of the east room. This east room is an old room, not used much. There was nothing

in it. The feet were directly under the eaves of the house. The head was directly

south, as though she had been standing with her back to the wall. I don't think it

was over five minutes after I heard of the killing until I got there. There were a

good many there when I got there. Aleck Brown, John Kerr, Ben Holiday, and Aunt

Darcas Gage were there when I got there. Aleck Brown went after Oliver Wilkins,

the husband of the deceased. I think he went after him of his own accord. When

Oliver got there, I noticed him, and he seemed very much excited. He went and

got his gun, and went out in the garden. Aleck **597 Brown lives 200 yards or

more from Wilkins' house,--a little west of south of Wilkins' house. The blocks

are divided into squares of three-acre tracts. Oliver Wilkins' house, where

deceased was killed, is in the northwest corner of one three-acre block, and

Darcas Gage's house is near the southeast corner of the same block, and about

45 yards distant. Frank Morrison's house, where Ann Morrison lives, is on the

block immediately north of Oliver Wilkins'; and Ben Holiday's house is on the

same block the Wilkins house is on, and in the same southwest corner. Dally Nunn's

house is on the same block with Frank Morrison's house, and in the northeast corner

of same. Kerr's house is a little south of east from Wilkins' house, and between

75 and 100 yards distant. Aleck Brown's house is a little west of south from Oliver

Wilkins' house, and about 200 yards distant. In going the most direct route from

Oliver Wilkins' house to defendant's, you would pass by the Ben Holiday house. In

going from the Ben Holiday house to the Taylor house, in the most direct route,

you would pass by Oliver Wilkins' house. Maria Gage lives about one-quarter of a

mile from Ben Holiday's house,--a little east of north. These three-acre blocks

are surrounded by streets. Ben Holiday's house is the only one you would necessarily

pass in going from Oliver Wilkins' to defendant's by the most direct route.

Immediately north of defendant's house is an inclosed three-acre block, with no

houses or improvements on it."

*123 The following is a correct plat of the grounds and houses, and was introduced

in evidence by the state:



Darcas Gage, for the state, being sworn, testified as follows:

"I am the mother of Jane Wilkins, the deceased. The first time I knew Jane was dead,

Ann Morrison came to my house, and called me, and said, 'I think one has killed or

hurt Jane.' I went up there, and found her lying on the ground, with her head cut

open, and a bloody ax lying near her. I screamed, and kept a- screaming. No one

came, and I went back, and put on my clothes. When I came back, John Kerr came.

His nephew, Walter Wheeler, came with him, and shortly afterwards Aleck Brown

came, and he stooped over Jane, and said: 'Yes; sure enough, she is dead.' Aleck

said to John Kerr, 'Let's put her in the house.' Kerr said, 'No.' Aleck walked

off, put his elbows on the fence, and leaned his head on his hands. I said, 'Who

will go after Oliver Wilkins?' and Aleck said 'I'll go.' Before cotton-picking

time, Aleck and Jane had trouble, fussing and quarreling. Aleck was frequently at

Oliver Wilkins', both in the day and at night, while Oliver was absent, and no

one at home." Cross-examined, witness testified: "Ann Morris called me three times.

I was asleep when Ann called me. When Oliver came up, he said, 'There *124 is my

poor wife.' After Ann Morrison called me, I went right up, in my night linen. I put

my hands on her head, and I thought she said, 'Ma.' The body was still warm. I

screamed, and kept hollowing, 'Some one has killed my poor child! I went back,

and dressed. I don't think it took me fifteen minutes. I went just as quick as

I could. Jane Wilkins married Tobe Cook's father the first year of freedom. Aleck

Brown was then only a baby." Re-examined by the state, Darcas Gage testified:

"About four months before the death of deceased, the defendant and deceased were

at Oliver Wilkins' house, quarreling, and I went to them, and tried to stop it,

and defendant started off, and then stopped, and picked up a big stick of wood,

and threw at deceased, and hit the fence; and I said,--'Aleck, I am going to make

your pocket blue for that;' and he said, 'God damn you! I will make your heart

bleed in less than six months,' and then left. Oliver Wilkins' family consisted

of only himself and wife, and a little five or six year old boy, and no one lived

at his place except this family."

J. F. Nash recalled for the state testified: He arrested the defendant on this

charge on the night of the murder. Very shortly after witness "got to Wilkins',

being shortly after ten o'clock, he had on no hat or coat or overshirt, and only

a clean undershirt on the upper portion of his body. The sleeves he had on when

arrested had some spots of blood on them at the time he was arrested. I went

that night to defendant's house, and found a white straw hat and a pair of pants

of defendant's, both of which had some spots of fresh blood on them; but I did

not notice the blood on the hat and pants of defendant until the next morning,

but noticed it on the shoes that night. The blood on the hat was a small spot on

the under side of the brim, and a large spot on the band, and there were large

spots on his shoes. The blood has faded away some, but I can see it on the hat

and pants and shoes now. The deceased had been struck three times in the head,

and once in the shoulder, with the ax, or some sharp, cutting instrument. The

wounds were all deep ones, and the head was cut to pieces, and had to be tied

up for burial." Cross-examined, the witness J. F. Nash testified: "The blood

is plainer **598 now on the hat band than it is now on the shoes and pants. When

I first saw it, it was red, and looked like fresh blood. I could not tell the

difference between blood put on the clothes at 10 A. M. and 7 P. M."


John Kerr, for the state, being sworn, testified: "I live a little distance from

the house of Jane Wilkins, the deceased. About ten o'clock on the night Jane

Wilkins was killed, I heard Aunt Darcas, the mother of deceased, screaming. I

ran up there. When I got there, there was no one there but Jane's mother. The

deceased was lying in a pool of blood, dead, and a bloody ax was lying near

her. Her head was cut all to pieces with the ax, and I joined the pieces of

her head together with my hands, and there was nothing holding together but a

piece of skin. Aleck *125 Brown was the fourth man there. Darcas asked Aleck

to go and get Oliver. When Oliver got there, he walked around the yard, wringing

his hands, and said to defendant, 'Aleck, you have killed my wife,' and defendant

made no reply, and walked off. When Aleck Brown came, he said, 'What's the matter?'

It was ten o'clock, by my clock, when I left home. When I got there, about three

minutes afterwards, I heard Darcas scream." Re-examined: "The defendant had no

hat on his head there that night, and he was the only person there I saw without

a hat on his head. I was there the whole time defendant was there that night,

and he never inquired anything about who committed the murder, or who was suspected

with it."

Oliver Wilkins, being sworn for the state, testified: "I am the husband of Jane

Wilkins, the deceased. I last saw her alive on October 15, 1892, about four o'clock

in the afternoon. From sundown until Aleck Brown came after me to tell me of my

wife's death, I was at the white folks' gambling joint at the Home saloon. John

Majors, Warren Fleming, and Joe Sims, and others, were there. I went at once to

go to the market to borrow fifty cents, and at this time also went to the negro joint,

and was gone not over ten minutes. I went out only one other time, to go to the

saloon, a few feet from the white folks' joint, to get a drink of whisky, and

returned as soon as I got the drink." Cross-examined: "When Aleck Brown came in,

he said, 'Oliver, somebody has killed your wife with your own ax.' I think I got

to the house in about fifteen minutes before Aleck got there. When I got there,

I said, 'Ain't it a pity my poor wife is here, dead?' I got my gun, but there

was no load in it, and it wouldn't shoot, anyhow, for the breech pin was out.

I kept my ax under the house, with the handle lying straight with the side of

the house. You could not see it without stooping down." Re-examined: "I was not

at home any time that night between sundown and the time I was informed of the

death of my wife. I gave Mary Brown, daughter of defendant, a squirrel on the

day of the death of my wife. The squirrel was dressed and cleaned on the day I

gave it to her."

George Davis, being sworn for the state, testified: "I am sheriff of Bastrop

county. I examined the hat and shoes and clothes referred to by the witness J.

F. Nash, and saw the spots of blood on them. I examined the hat and shoes and

pants the next morning after the murder. The blood was fresh, red blood."

H. N. Bell, being sworn for the state, testified: "I examined the spots of

blood on the hat and pants and shoes of the defendant on the morning after the

murder, and the blood was red and fresh."

Pearson Hill, being sworn for the state, testified: "A few minutes before nine

o'clock on the night Jane Wilkins was killed, I met Aleck Brown at Dally Nunn's

corner, which is the northeast corner of the block north of Oliver *126 Wilkins'

house, I said: 'Hello, old boy! Where are you going?' He said, 'I am only walking

around.' We talked a short time about the supper, and about the folks passing up

town, when I told him I must be going, and bid him good night." Cross-examined:

"He had a white straw hat in his hand when I met him. I think he had on an old

pair of rickety-looking brown jeans pants. Where I met him was northeast of Oliver

Wilkins', and Aleck lives southwest from Oliver's. Aleck said he believed he

wanted to go up town. I told him not to go up there; the negroes were fussing

in that joint, and some one had to go to hell out of that hole, and he had better

keep away. I said: 'I must be going. I promised my wife to be home early tonight.

If I don't go, I will have a fuss on my hands.' Aleck laughed, and said: 'Yes, that's

so. We do sometimes get those on our hands when we go home late.' When I bid him good

night, Aleck went west, and I went east. Immediately after I left defendant, and went

about one hundred yards, and crossed the railroad, the town clock struck nine. When

I first saw defendant, he was coming from between two seed houses on the railroad

reservation near Dally Nunn's corner."

Dally Nunn, being sworn for the state, testified: "I live northeast from Oliver

Wilkins' house. On the night Jane Wilkins was killed, I heard Pearson Hill and

Aleck Brown on the north side of my house, talking. It was about nine o'clock.

About an hour afterwards, I heard Aunt Darcas scream."

Ann Sims, being sworn for the state, testified: "In the spring of 1892 I went

to Aunt Jane Wilkins' house. Aleck Brown, the defendant, was there, and she

and Aleck were quarreling and fussing, and Aleck called her a damned bitch.

Aleck was cursing, and Jane was hollowing. At another time after this, I was

passing by Wilkins' house, and heard defendant and deceased quarreling, and

I heard the deceased say, 'I will not do it,' and the defendant then said to the

deceased that he would kill her. He said, 'Nigger, I will show you. I will kill

you.' This was at night, and there was no one there except defendant and deceased.

I have heard Aleck Brown curse Oliver Wilkins, too."

Tishie Kerr, having been sworn for the state, testified: "About 9:30 o'clock on

the night that Jane Wilkins was killed, I **599 heard four or five licks struck,

and heard Jane scream. The licks sounded like some one cutting wood. There

wasn't five seconds between the licks. I live at John Kerr's. The licks

sounded like they were at Wilkins' house, and I recognized deceased's voice,

in a scream, following immediately after I heard the first blow, and heard

the scream only one time. The voice was a scream, as if in distress."

Ben Holiday, being sworn for the state, testified: "I live south of Oliver

Wilkins' about fifty or sixty yards. On the night of October 15, 1892,

I went to town at the first of dark, and came back in about twenty minutes.

*127 When I came back, Aleck Brown, the defendant, was talking with Jane

Wilkins, the deceased. He was standing on the outside, and she was on the

inside, of the yard fence of Oliver Wilkins' place. My little boys, who had

gone up to the Taylor House, got home about half an hour, or may be three-

quarters of an hour, after I got back from town. I live on the most direct

route from defendant's house to Oliver Wilkins', and in going to the Taylor

House, by the most direct route, from my place, you would have to pass

Oliver Wilkins' place. Maria Gage lives about one-quarter of a mile southeast

from where I live; and, at the time of the death of Jane Wilkins, Maria Gage

owed me a dollar, which she promised to pay on that day, but did not pay on

that day. My house is very near the sidewalk, and on the night of the murder

there was a lamp burning with a full light until a few minutes before I heard

Aunt Darcas screaming, when she found her daughter dead. There is one door

and one window of the house on the west side of the room the lamp was in that


Lloyd Holiday, being sworn for the state, testified: "About two or three hours

after dark on the night of the murder of Jane Wilkins, I and my brother left to

go to the Taylor House, and on our return came back by Jane Wilkins' house.

The defendant, Aleck Brown, was there by the fence, talking to her. They said

'Yes' about something. I was gone about half an hour. She was inside of the

yard fence, and he was on the outside. They were near the gate, on the west

side of the house."

Ann Morrison, being sworn for the state, testified: "I live on the opposite

side of the street from Oliver Wilkins'. The street is about thirteen yards

wide. Oliver's house is about ten feet from the street, on the south side,

and mine, about the same distance, on the north side. Oliver's house fronts

south, and mine east. On the night of the murder, at about eight o'clock,

or after, I saw Aleck Brown standing on the outside of Oliver's yard fence

of Oliver's house, at or near the northwest corner. Jane Wilkins, the deceased,

was standing on the inside, and they were talking to each other. They were

close together, and one each side of the fence. They were quarreling, I don't

know what about. They stood there quarreling for several minutes. I heard

him say something about money, and I heard Jane say she was through with him,

and would have nothing more to do with him. She left, and immediately went

in the house, and defendant immediately opened the gate, and went in, and left

the gate open. He followed Jane immediately into the house. I heard some noise

in Jane's house. It sounded like some persons fussing and quarreling. This

rumpus was kept up several minutes, and I could not tell what was said by the

persons fussing and quarreling. I went out to my yard fence, and I could tell

then that the parties were outside, and south of the house, fussing and

quarreling. I heard Jane say, 'You're a liar.' Then I heard the defendant,

Aleck Brown, say something in *128 answer, but could not tell what it was.

Then I heard about four licks struck, and heard Jane scream after the first

lick was struck, but heard her voice no more after I heard the second blow.

After I heard the blows, and heard Jane scream, I saw some one run and jump

over the fence right south of the gate, and run down by Ben Holiday's, in

the direction of his house. I heard a plank of the fence break as he got over

the fence. I have seen the defendant there frequently, both day and night,

while Oliver Wilkins was not at home. I heard her say, 'You're a liar.' Then

I heard him say something, and then she said, 'It's a lie,' and he said

something else, and she said again, 'You're a liar.' I went in the house while

they were standing at the fence. I stayed a little while, and when I came out

I could hear them in the house, talking, quarreling, and sounded like they

might be fighting, and I recognized it as Aleck's voice. They kept this up

until I went in the house again. I stayed a few minutes, and when I came out

they were out in the yard. I could hear them quarreling and talking in the yard.

I could not understand all the defendant said. He talked low, but I could

understand Jane. She called him a liar three times. I went back in my house

the third time. Not long after I went in, I heard the blows struck, and the

screaming of deceased; and then I heard some one run across the yard, and

saw him jump over the fence, and heard the fence break as he got over. I

could not tell how he was dressed. I then went in my house, and stayed about

half an hour, I think, and then I called Jane, but she did not answer. I then

went and called Aunt Darcas, her mother, and she came, and found Jane dead,

with her head split to pieces, with a bloody ax by her side. The defendant

and deceased had had quarrels before, and at one time he bit one of her

fingers nearly off. I have known the defendant, Aleck Brown, ever since he was a

baby. (And the witness points him out, and identifies him in open court, before

the jury, and says she is positive he is the man who was engaged in the

conversation and quarreling with the deceased on the night of the murder.)

I heard the conversation, and recognized his voice. This all occurred in the

town and county of Bastrop, in the state of Texas, on or about October 15,


Jo Sims, being sworn for the state, testified: "I know where Oliver Wilkins

was on the 15th of October, 1892, from six o'clock P. M. until Aleck came to

tell him of the death of his wife. He was in the **600 gambling house, a few

feet in the rear of the Home saloon from six o'clock P. M. on said day until

I left the gambling house. I left the saloon about 8 o'clock, and, when I

returned, Oliver was gone to the scene of the killing."

Step Smith, being sworn for the state, testified: "Oliver came to the gambling

joint near the Home saloon six P. M. the night Jane was killed, and never left

there at all during the time until Aleck came after him, except once to go

into the saloon, a few feet distant, to get him a *129 drink. He went to the saloon,

got his drink, and immediately returned to the gambling house, and remained there."


Warren Fleming, being sworn for the state, testified: "Oliver Wilkins was at the

White joint in the rear of the Home saloon on the night of the killing of Jane

Wilkins, from a little after six o'clock until defendant came after him. He left

only one time during that time to go into the saloon, a few feet distant, to

get him a drink, and was gone five or ten minutes, --can't be certain,--and

returned and remained there until defendant came after him."

John Majors, being sworn for the state, testified: "Oliver Wilkins, on the

night of the killing of Jane Wilkins, came to the joint in the rear of the

Home saloon, and stayed there from about six o'clock P. M. until the defendant

came and told him of the death of Jane Wilkins. He was gone only once during

said time, and then went into a saloon, a few feet away, to get a drink, and

immediately returned. Oliver was betting, and I was dealing. Oliver was gone

after the drink about five minutes,--not over ten minutes, if that." Cross- examined:

"I was busy with my game. I did not pay much attention to the time, but it did not

seem to me more than ten minutes. He had money when he came back, and went to

betting on the game."

Josh Gage, being sworn for the state, testified: "On the night Jane Wilkins was

killed, my mother sent me down to Ben Holiday's to tell him, if he would come

up to our house, she would pay him that dollar she owed him. When I got nearly

to Ben Holiday's house, I saw defendant, Aleck Brown, runing towards me from

the direction of Oliver Wilkins' house. He ran up in reach of me, and I saw

it was Aleck Brown. He sorter circled around a light made by a lamp in Ben

Holiday's house, as if trying to shun the light, and went towards his home

in a sort of trot. I got scared, and ran back towards the Macedonian Church,

where my mother was. I didn't stop running until I got to the Macedonian

Church. Aleck was running fast until he passed me, and after passing me he

ran, in a sort of a trot, off in the direction of his home, near there. He

was in the street between Ben Holiday's house and Jane Wilkins' house,

coming from the direction of Jane Wilkins' house, when I first saw him; and

I got scared so badly when I saw Aleck running that I immediately turned, and

ran back to my mother, without seeing Ben Holiday. I am between fourteen and

fifteen years of age, and Maria Gage is my mother. I have known the defendant,

Aleck Brown, all my life, and am positively certain the man I saw running that

night, as I have stated, was the defendant, Aleck Brown. (And the witness

points, and identifies the defendant, in court, as the man he saw running, as

testified by him.)" Cross-examined: "I have talked about seeing Aleck that night

with Uncle Oliver Wilkins. I didn't tell him what I was going to say. I *130

don't know why I wasn't asked to testify at the examining trial. I know Aleck

Brown well, and one reason I got scared was because his shirt was unbuttoned,

and he ran up so close to me I could have put my hand on him. As soon as I saw

my mother, upon my return, I told her about my seeing Aleck Brown running, and

about my getting scared, and failing to deliver her message to Ben Holiday."

Maria Gage, being sworn for the state, testified: "I am the mother of Joseph Gage,

and he is fourteen years old. I sent him to Ben Holiday's on the night Jane was

killed. Joseph left just after dark. He was gone about one-quarter of an hour,

and had been back about half an hour when we heard Aunt Darcas screaming that Jane

was killed. I was owing Ben Holiday one dollar, and had promised to send it to him

on that day, but a check for my money had been lost, so I could not get my money

that day; and I sent my son Josh to Ben Holiday's that night to tell him I would

get the money, and pay him the next day. It was about nine o'clock, I suppose,

when I started him to Ben Holiday's, and in about fifteen minutes he came running

back, and said that he did not see Ben Holiday; that when he got to Ben Holiday's

house he met Aleck Brown, the defendant, running by Holiday's house; and that this

frightened him so that he turned, and returned in a run, without seeing Ben

Holiday. About one-half an hour or more after Josh returned, and told me this,

I heard Darcas Gage screaming out that her child had been murdered. I live near

Col. Jones'. It is almost a mile from Col. Jones' to the place where Jane was


Here the state closed.

Caddy Brown, being sworn for the defendant, testified: "I am the wife of Aleck

Brown, the defendant. We went to bed about half past eight on the night Jane was

killed. We went to sleep. I heard Aunt Darcas screaming, which waked me up. Aleck

was asleep beside me in the bed. I woke him up, and told him to put on his clothes,

and run on ahead of me. It was dark when he got up, and I don't know what clothes

he put on. We had supper late. It must have been eight o'clock or after. Aleck might

have been knocking about the lot while I was getting supper. I was busy, and didn't

pay any attention to him. When I got over to Oliver's, Aunt Darcas threw her arms

around me. She told Aleck to go after Oliver."

Mary Brown, being sworn for the defendant, testified: "I am the daughter of Aleck

Brown. I was at Jane Wilkins' on October 15, 1892, and left there about seven

o'clock. Uncle Oliver was out hunting that morning, and gave us a squirrel.

**601 Papa cut it up, and salted it. I took two squirrel tails home with me,

and gave them to my little brothers to play with. The last I saw of them, they

were playing with them around the house." Cross-examined: "The squirrel was

dressed by Oliver Wilkins before he gave it to me, and he gave it to me before

noon of that day, and I took it in my hand over from Wilkins' house to defendant's."


*131 George Kirk, being sworn for the state, testified: "I took Aleck's sister

to the supper that night."

William Matthews, being duly sworn for the defendant, testified: "On the night Jane

Wilkins was killed, between seven and eight o clock, I was going south, down the

railroad track; and at the southeast corner of the block on which Oliver Wilkins,

Ben Holiday, and Darcas Gage live, I saw the defendant turn the corner of the

fence, coming from the direction of his residence, and going up north, in the

direction of Dally Nunn's corner."

Dr. J. B. Camps, being sworn for the defendant, testified: "I walked from the

gambling joint where Oliver Wilkins was on the night Jane Wilkins was killed to

Oliver's residence. I took six minutes to walk there, and six minutes to walk

back from there, at a pretty rapid gait."

Dyer Moore and McPhaul & Hood, for appellant. *132 R. L. Henry, Asst. Atty. Gen.,

for the State.




Appellant was convicted of murder in the first degree, and his punishment assessed

at death. It is contended that the act of the special session of the twenty-second

legislature, organizing the twenty-first judicial district, is unconstitutional,

because the governor did not, in his proclamation convening said legislature,

designate this particular matter in said proclamation as a "subject" for legislation.

Article 4, § 8, Const., provides that "the governor may, on extraordinary occasion,

convene the legislature at the seat of government, or at a different place, in case

that should be in the possession of the public enemy, or in case of the prevalence

of disease thereat. His proclamation shall state specially the purpose for which the

legislature is convened." It is further provided by article 3, section 40, of said

section: "When the legislature shall be convened in special session, there shall be

no legislation upon any subject other than those *133 designated by the proclamation

of the governor calling such session, or presented to them by the governor, and no

such session shall be of longer duration than 30 days." The proclamation, among other

things, convened the legislature "to reapportion the state into congressional,

senatorial, judicial, and representative districts, and to provide for the election

of officers therein." The judicial districts mentioned in the proclamation were

those presided over by the district judges. A casual inspection of the proclamation

renders this certain. That the authority to reapportion or reorganize the judicial

districts of the entire state necessarily carried with it the power to reapportion

any given number of such districts is to our minds a self-evident proposition.

The office of the proclamation is to designate the subjects, and not the manner

or extent of legislation on such subjects. "It was not the intention to require

the governor to define with precision, as to detail, the subjects of legislation,

but only in a general way, by his call, to confine the business to the particular

subjects." Mitchell v. Turnpike Co., 3 Humph 455; Devereaux v. City of Brownsville,

29 Fed. Rep. 742; Baldwin v. State, 21 Tex. App. 591, 3 S. W. Rep. 109. That the

legislature may only enact legislation in part in relation to the subject

mentioned in the call does not render such legislation invalid, nor is it

necessary to the validity of such legislation that the whole subject-matter

should be acted on by the legislature. The call includes the entire subject

of reapportioning the judicial districts, and authorized "any and all such

legislation upon that subject as was deemed necessary by the legislature.

It was not necessary, nor would it have been proper, for the governor, in his

proclamation, to have suggested, in detail, the legislation desired. It was for

the legislature to determine what the legislation should be." Baldwin v. State,

21 Tex. App. 591, 3 S. W. Rep. 109.

2. We do not concur in contention of counsel that the object and purpose of the

act are not sufficiently stated in its caption. It was not necessary to state

in the caption the different counties constituting the newly-constituted district,

nor to state that one of the counties composing such district was transferred

from some adjoining district. The caption is sufficient, and not violative of

article 3, § 35, Const. [FN1]


  FN1 Const. art. 3, § 35, provides that no bill shall contain more than one subject,

which shall be expressed in its title.



3. Defendant's motion to set aside and quash the indictment because he was not allowed

an opportunity for challenging the array of jurors constituting the grand jury was not

well taken. He made no request to be brought from jail for that purpose. This was

necessary. Code Crim. Proc. art. 377; [FN2] Willson, Crim. St. §§ 1901, 1902.




  FN2 Code Crim. Proc. art. 377, provides that any person, before the grand jury has

been impaneled, may challenge the array, or any person presented as grand juror, and

in no other way shall objections to the legality of the grand jury be heard, and that

any person confined in jail in the county shall, on his request, be brought into

court to make such challenge.



4. A continuance was sought in order to have analyzed the blood found upon the

defendant's clothing. There was no diligence used to obtain such analysis, and

no excuse given for such failure. The murder occurred October 15th, and the

application for continuance was filed January 14th following. Again, the blood

spots were found upon defendant's hat, *134 pants, shirt, and shoes, and the

application alleges it came from a squirrel he had dressed on the morning

preceding the homicide at night. The evidence adduced by himself, as well as

by the state, shows that he did not dress the squirrel. He introduced his

daughter, who stated that a squirrel **602 had been given her on the morning

in question, but that it was dressed before she received it, and she carried

it home after it was given her, and the state introduced the witness who made

the present, and who also dressed it. The analysis could not have been material,

under the facts of this case.

5. When the allegations in a bill of exceptions are contradicted by a statement

of the court, annexed to the bill, such statement will be held to correctly

present the matter at issue. As thus qualified, the bill disclosed that Oliver

Wilkins, husband of deceased, said to defendant, "Aleck, you have killed my

wife." Defendant made no reply, and walked off. The admission of this evidence

was not error.

6. It was not error to receive and record the verdict on Sunday. Powers v.

State, 23 Tex. App. 42, 5 S. W. Rep. 153; Walker v. State, 13 Tex. App. 618;

Shearman v. State, 1 Tex. App. 215.

7. The bill of exceptions recites the reception of the verdict on Sunday, which

was the 15th day of the month. The entry of the judgment is shown by the

transcript to have been made on the 14th. Because of this variance it does

not follow that the judgment was entered on Sunday. If entered on Sunday, it

was a fact easy of ascertainment and proof, and should have been shown, if

it was desired to set aside the judgment on this ground. We are not authorized

to presume, from the variance in the dates stated, that such entry actually

occurred on the 15th, or on Sunday. Presumptions are indulged in aid and support

of the judgment. The party attacking the judgment must overcome such

presumptions. The day set out in record of judgment simply recited the beginning

of the trial.

8. The court's omission to instruct the jury in regard to the law of manslaughter was

not error. The evidence does not raise that issue.

9. The evidence supports the conviction. In addition to previous quarrels and

difficulties between the parties, and threats of the defendant against deceased,

the killing, and the manner of its execution, were attended with such circumstances

of enormity and cruelty as afford sufficient evidence to warrant the conclusion

that the killing was the result of a sedate, deliberate mind, and formed design,

and that it was committed upon express malice. The judgment is affirmed. Judges

all present and concurring.

Tex.Crim.App. 1893.


22 S.W. 596, 32 Tex.Crim. 119