SUPREME COURT RECORDS PAGE 9
File contributed by Lisa Lach and proofed/formated by Dena Stripling
APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. Moore.
*1 The indictment in this case charged the appellant with the theft of two horses,
the property of E. L. Norris, on the sixteenth day of May, 1883. The penalty imposed
by a verdict of guilty was a term of eight years in the penitentiary.
E. L. Norris testified, for the State, that he lived about twenty miles west of San
Antonio, in Bexar county, Texas. On the night of May 15, 1883, he turned his two
gray horses out to graze near his place, after having worked them all that day.
One of them was branded with an &, reversed, on the left shoulder; the other with the
letters cc on the left shoulder, and the device of a heart inverted, surmounted with
an upturned B, on the left hip. One of them was belled. The witness hunted for these
two animals all of the next day, when, not finding them, he became convinced that they
had been stolen, and accordingly addressed to the several counties postal cards
giving descriptions of them. After a time he received a letter from the sheriff of
Caldwell county, stating that two horses answering the description had passed through
Lockhart, going towards Bastrop. Ten days or two weeks later the witness received a
letter from sheriff Jenkins, of Bastrop county, stating that the horses were then in
Bastrop. Witness went to Bastrop immediately, and found his horses in the possession
of sheriff Jenkins, who delivered them to the witness. These animals were taken without
the knowledge or consent of the witness. The witness never saw the defendant before
he saw him at Bastrop, at the time he recovered his horses.
Mat. Luna testified, for the State, that he lived on the Brooks Duval place, near the
town of Bastrop. On or about May 20, 1883, the defendant and another Mexican named
Tomas Gonzales came to the witness's house with two gray horses corresponding to the
description given by the witness Norris. They remained at the witness's house two or
three days, during which time the witness purchased the horse branded & from the
defendant, and the other horse from Tomas Gonzales, and received from them respectively
the following bills of sale:
"BASTROP, May 22, 1883.
This is to certify that I have bargained, sold and delivered to Mat. Luna one (1) gray
horse branded cc on the left shoulder, and (B turned horizontally over an inverted heart)
on the left hip, about eight years old, for the sum of $45.00. This title I monarch and
defend against any person claiming the same.
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
J. R. SMITH.
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
The judgment is reversed and the cause is remanded.
Reversed and remanded.
FERRIER GARCIA v. THE STATE.
15 Tex.App. 120, 1883 WL 8991 (Tex.Ct.App.)
END OF DOCUMENT
Appeal from district court, Williamson county.
This conviction was in the second degree, for the murder of James Davis, on the
fifteenth day of June, 1886. A term of five years in the penitentiary was the
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
ROWLETT v STATE.
4 S.W. 582, 23 Tex.App. 191
END OF DOCUMENT
Appeal from district court, Bastrop county; H. TEICHMULLER, Judge.
On the 19th day of October, 1889, an indictment was preferred and returned by the
grand jury of Bastrop county against Ike Wilson, Runnels Williams, Bob Thompson,
Jesse Johnson, O. W. Wicks, York Aldridge, Fountain Moore, Ben Clark, George
Jones, and Milton Nobles, for the murder of George Schoeff and Alex. Nolan, in
said county, on the 13th day of June, 1889. On the 6th day of November, 1889,
defendants were duly arraigned, and, plea of not guilty being entered, a severance
was had upon motion of defendants, and the defendants O. W. Wicks, George Jones,
and Milton Nobles, appellants herein, were placed upon trial together, but
separately from their co-defendants. Being convicted of murder in the second
degree, the punishment of appellant O. W. Wicks was fixed at 20 years'
confinement in the penitentiary, and that of appellants George Jones and
Milton Nobles at confinement in the penitentiary for 17 years each. Wicks,
a negro, was justice of the peace, before whom the case of State v. Addie
Lytton, for assault and battery, was set for hearing on June 13, 1889. The
white people, fearing that Lytton would not be accorded a fair trial, went
armed to the place of trial. When the case was given to the jury, Lytton
walked out of the house, and it was then that the firing commenced. The
material part of the testimony of West Craft, for the state, was as follows:
"I was at Cedar Creek on the day of the shooting. I got there about 2 or
2:30 o'clock. I got down off my horse, and was talking with Jesse Johnson
and some boys. While sitting there, Cuffie Williams came up, beckoned, and
called me. I got on my horse, started towards him, and we met. As we started
off, O. W. Wicks, defendant, called me, and told me he wanted to see me.
Wicks was getting out one of the windows on the side of the court-house
next to Dick Lemuel's. I went to him, and he came up to me, and asked me
where I was going; I still being on my horse. He whispered to me, and
told me not to go away, and then made some remarks about the white people
being there. In the conversation, Wicks said for me not to go away; that
he had me deputized to help protect the court; that we would bring the
thing off directly, and that he wanted me to stay there, and wanted the
negroes to hang together, and 'kill as many of the devilish white folks
as they do of us.' Cuffie Williams and I then started off towards
Givensville. I heard Ike Wilson halloo: 'Halt,' or 'Come back.' About
that time, I looked back, and saw Ike throw up his gun; and a fire was
made, but I cannot say who made it. The shooting then all began, and
I shot, too. I shot in every direction. On the first Saturday after
the difficulty, I was arrested at Bastrop, and Wicks was at the court-house
when I was brought down there. Mr. Fowler was acting for the state, and fixed
up the papers against me. When first arrested, I requested to have a private
talk with Mr. Fowler; and Wicks was there, or came in there shortly afterwards.
While in the sheriff's office talking with Mr. Fowler, Wicks came in, leaned
over the table, and whispered to me, and told me not to give him away, or
tell anything on him; and I told him I did not know anything to tell. When
he left, Mr. Fowler asked me what he said, and I told Mr. Fowler." The theory
of the defense was that the whites had threatened to interfere with the
officers of the court in the discharge of their duties, to rescue Addie Lytton,
whose trial for assault was pending before the defendant Wicks, to accomplish
their purpose by force, and to kill Ike Wilson if necessary, etc.; that they
congregated in large numbers, several of them being armed, and took possession
under a mesquite tree a short distance from the front of the house; that,
when the jury in Lytton's case retired to deliberate on the verdict, Lytton
left the house; that Wilson, the constable, followed, and called to him to
await the verdict of the jury; that the whites then rose in mass at the cedar
tree, handed Lytton a gun, and opened fire on Wilson; and that Wilson did not
return the fire until he had been fired upon at least twice.
On the trial of certain negroes for the murder of certain white men,
a white man testified that a negro had told him that he heard one of the
negroes say that they were going to kill off the whites. Held incompetent,
as hearsay, and prejudicial to defendants.
On the trial of negroes for the murder of white men, testimony as to statements
made by some of the negroes, not on trial, in the absence of defendants, was
hearsay as to defendants.
On the trial of certain negroes for the murder of certain white men, testimony
as to statements made by some of the negroes, not on trial, in the absence of
defendants, was hearsay as to defendants, and incompetent, in the absence of
proof of a conspiracy to murder between defendants and those who made the
statements, and that the statements were made pending the conspiracy, in
furtherance of the common design.
A combination or conspiracy must be established before the acts, declarations, or
confessions of one alleged conspirator can be given in evidence against another.
Where the state introduces evidence of accomplices, the refusal of the court to
charge that a conviction cannot be had on the uncorroborated testimony of accomplices
is ground for reversal.
On the trial of certain negroes for the murder of certain whites killed in a fight
between whites and negroes at the trial of one L., before a negro justice of the peace,
the theory of the state was that the negroes started the difficulty in pursuance of a
previously formed conspiracy, and there was testimony tending to sustain this theory,
as well as that of defendants that the whites started the trouble pursuant to a
previous plan to interfere with the court. Held that, for the purpose of showing
that the whites went there with innocent motives, which would tend to show that
they were not the assailants, it was a proper question for the state to ask one
of them why he went there armed, and that his answer, "We went there to see that
no harm came to L.," was competent.
**749 *462 G. N. Jones and H. M. Garwood, for appellant. Asst. Atty. Gen. Davidson,
for the State.
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
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.
WICKS ET AL. v STATE.
13 S.W. 748, 28 Tex.App. 448
END OF DOCUMENT
Appeal from district court, Bastrop county; Lafayette Kirk, Judge.
Aleck Brown was convicted of murder in the first degree, and appeals. Affirmed.
On a trial for murder, evidence that the husband of deceased told defendant that
he (defendant) had killed deceased, and that defendant made no reply, was competent.
Where the defendant in a murder trial applied for a continuance to have blood
stains on his clothes analyzed, the affidavit alleged that the blood stains were
from a squirrel which he had dressed on the morning preceding the homicide.
Defendant's daughter testified that a squirrel had been given her on that
morning, but that it was already dressed, and this testimony was corroborated
by the person who gave it to her. Held, that the continuance was properly
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
**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
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.
BROWN v. STATE.
22 S.W. 596, 32 Tex.Crim. 119
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