SUPREME COURT RECORDS PAGE 6
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An indictment charging defendant with stealing a "yearling" is sufficient, under
a statute punishing the theft of "cattle."
*1 APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.
R. C. Stafford, for appellant.
George Clark, Attorney General, for the State.
REEVES, ASSOCIATE JUSTICE.
In this case the appellant moved the court to arrest the judgment on the following
ground:
Because the indictment on which the defendant was tried is defective in this: said
indictment does not describe the property therein alleged to be stolen as coming
within the meaning of the term "cattle" as used in the statute.
The indictment charges the defendant with stealing a dun-colored bull yearling, of
the value of five dollars, the property of Pat Thomas.
The statute under which the defendant was indicted provides that if any person shall
steal any cattle, he shall be punished by confinement in the penitentiary not less than
two nor more than five years (Act of May 17, 1873, Paschal's Dig., art. 766.)
As understood in common language, a "yearling" comes under the denomination of cattle,
and is so classed in other statutes for the protection of cattle.
There being no statement of facts or bill of exceptions in the record, the assignments
complaining of the charge of the court and the verdict of the jury cannot be revised;
and no error appearing on the face of the proceedings, the judgment is affirmed.
AFFIRMED.
Tex. 1876.
ZACK BERRYMAN v. THE STATE.
45 Tex. 1, 1876 WL 9167 (Tex.)
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In an indictment for the theft of cattle, a designation of the species is sufficient-as
cow, steer, ox, and the like-without use of the generic term "cattle," and it was not
error to overrule a motion to quash an indictment for theft of a "beef steer," on the
ground that the indictment failed to allege that the animal was of the "species of
cattle."
*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.
The opinion of the court sufficiently states the case.
Jones & Sayres and J. P. Fowler, for the appellant.
H. H. Boone, Attorney General, for the State.
WINKLER, J.
The appellant was indicted, tried, and convicted in the district court of Bastrop county
on a charge of unlawfully and fraudulently taking from the possession of G. H. Jenkins,
without his knowledge or consent, and with intent to convert to his own use, "a certain
yellow and white pieded beef steer."
A motion was made to quash the indictment, "because the indictment attempts to charge the
defendant with the commission of a felony, and fails to do so in that the property alleged
to be stolen is not alleged to be of the species of cattle." The motion to quash was
overruled by the court, and the defendant excepted.
The ruling of the court on the motion to quash is made a ground in a motion for new trial,
which was also overruled. The defendant was then tried on a plea of not guilty, found
guilty by a jury, and his punishment assessed at confinement in the state penitentiary
for a period of four years, and judgment entered accordingly.
An appeal is taken on the following assignment of errors:
1st. The court erred in its charge to the jury.
2d. The court erred in refusing the charges asked by the defendant; and,
3d. The court erred in overruling the motion for new trial.
Considering the several alleged errors in the order of presentation, as to the 1st we
need do no more than say we have examined the charges as given by the court, and, when
taken in connection with those given at the request of the defendant, we are of
opinion that the law of the case, as made by the evidence, was correctly given to
the jury, and as favorably for the accused as the testimony warranted.
The 2d error assigned, refusing to give certain charges asked by the defendant, is
not maintainable. Those portions of the several charges refused which were at all applicable
to the case are embraced substantially in the charges given. The remaining portions were
inapplicable, and could only have tended to confuse the minds of the jury.
As to the remaining error assigned--to wit, the overruling of the defendant's motion for
new trial--we are of opinion this ruling of the court below was proper. The question of
the guilt or innocence of the accused was fairly submitted to the jury. The evidence on
the part of the prosecution was sufficient to fix on the defendant the wrongful taking
of the animal, under circumstances amounting to theft under the law, and sustains the
verdict of guilty found against him by the jury. There is nothing in the record to
justify us in concluding that the jury exceeded the bounds of a proper discretion in
fixing the punishment as they have done, it being within the limits prescribed by the
statute. The prosecuting witness proved ownership in himself, not in Burleson.
*2 Nor do we think the court erred in overruling the motion of defendant to quash the
indictment. The indictment charges theft of "a beef steer." The objection urged against
it is that it fails to allege that the animal was of the "species of cattle."
Repeated decisions of the supreme court show that in charging theft of cattle it is only
necessary to charge the species--as cow, steer, ox, and the like-- without the use of
the generic term, "cattle." This was settled law in Texas before the organization of
this court, and, as an investigation of the authorities will abundantly show, correctly
settled. See The State v. Lange, 22 Texas, 591; The State v. Eisenheimer, decided Austin,
1875; Parchman v. The State, decided Tyler, 1875; Hubotter v. The State, 32 Texas, 483.
In Parchman v. The State reference is made to the following: Bishop on Stat. Crimes, sec.
440, refers to The State v. Pearce, Peck, 66; The State v. Hambleton, 20 Mo. 452; The
State v. Abbot, 20 Vt. 537; Tyler v. The State, 6 Humph. 285; Whart. Am. Cr. Law, 4th ed.,
sec. 377, and references there made.
The indictment in this case, in using the word "beef steer," is sufficient, without the
statutory word "cattle," and the motion to quash was properly overruled.
We have carefully examined all the questions presented in the record and by counsel in
argument, and have not found anything which would warrant us in reversing the judgment
of the district court of Bastrop county rendered in this case.
Affirmed.
Tex.Ct.App. 1876.
GEORGE ROBERTSON v. THE STATE.
1 Tex.App. 311, 1876 WL 9066 (Tex.Ct.App.)
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It is an abuse of discretion to refuse a second continuance because of the absence of
witnesses, where accused had caused them to be attached, and they had given bonds for
their attendance, and did attend court until the day of trial, when they left without
his procurement, and where accused was reasonably certain of being able to compel their
attendance at the next term, though there was another witness who could testify to the
facts expected to be proved by the absent witness, such witness being interested in
seeing accused convicted.
*1 APPEAL from the District Court of Williamson. Tried below before the Hon. E. B.
TURNER.
John Dowell and Phil. Claiborne, for the appellant.
A. J. Peeler, Assistant Attorney General, for the State.
ECTOR, Presiding Judge.
The defendant was indicted, July 16, 1874, for the theft of a gelding, the property of
J. W. Mears. He was tried January 11, 1876, found guilty, and his punishment assessed
at five years in the penitentiary. Defendant made an application for continuance,
January 11, 1876, which was overruled upon certain grounds stated by the judge in the
court below; to which ruling the defendant took a bill of exceptions.
After giving the style and number of the case, the court and term, the following is a
copy of defendant's application for a continuance:
"Now comes the defendant in the above entitled and numbered cause, in his own proper
person, who, after being by me duly sworn, upon oath says that defendant cannot safely
go into trial in said cause at this term of the court for want of the testimony of
Charles Cottingham, William Litton, and Bat Lane, all of whom are resident citizens of
the county of Bastrop, and state of Texas, whose testimony is material to aid defendant
in his defense in said cause. Affiant says that he expects and can prove, by each and
every one of said witnesses, that affiant is not guilty of the charge as alleged in
said indictment filed in this cause; and, further, that affiant bought and purchased
said gelding affiant is charged to have stolen from one James Fuller, and paid him
therefor a reasonable consideration, and that affiant's connection with said gelding
is perfectly innocent, and in perfect conformity with law. That affiant has used
due diligence to procure the attendance and testimony of said witnesses at this
term of the court, by causing an attachment to be issued to said county of Bastrop
for said witnesses on the 10th day of March, A. D. 1875, which was duly served
upon said witnesses by the sheriff of Bastrop county, and the bond of said witnesses
taken by said sheriff of Bastrop county, on the 15th day of April, 1875, for the
appearance of said witnesses at the next term of the court thereafter, and from day
to day until this case was tried; and that said witnesses have, since said bond
was taken, been in regular attendance upon this court, except upon this day, and
that affiant does not now know why said witnesses are not in attendance; that said
witnesses are not absent by the procurement or consent of affiant; that this
application is not made for delay; that the testimony of said witnesses cannot
be procured from any other source; and that affiant has a reasonable expectation
of procuring the attendance of said witnesses in this cause at the next term of
the court;" which was duly signed and sworn to before the clerk of the court.
The defendant took a bill of exceptions to the action of the court on his
application for continuance. The district judge, in overruling the application
for continuance, as stated in said bill of exceptions, did so on the following
grounds:
*2 "1st. The court having commenced on the 3d day of January, 1876, and the
appellant, being out on bail, should have taken some steps to procure his
witnesses.
2d. The application itself discloses the fact there is another man by whom the
fact, to wit, that appellant had purchased the gelding, whose evidence, if the
fact be true, might be obtained; at any rate, if there was any reason why such
person could not be procured, that reason should be stated in the affidavit."
As to the first point, as has been said by the counsel for the defendant in their
able brief, we simply say that no better diligence could have been used by
appellant to obtain his witness than was used by him and stated in his application.
Defendant states that he had an attachment issued for his witnesses on the 10th
day of March, 1875, which was served upon them by the sheriff of Bastrop county,
and their appearance bonds taken by him, on the 15th day of April, 1875, for the
next term of the district court of Williamson county, and from day to day until
the case was tried; and that his witnesses, since the taking of their bonds, had
been in regular attendance upon the court, except upon the day when the case was
tried. The defendant used all the diligence the law required to procure the attendance
of said witnesses, and the fact that he was out on bond would not authorize or
require him to take other steps to secure their attendance, and it is an immaterial
question as to when the court commenced or when it adjourned. If appellant's
witnesses had been attached, and were under bond for attendance upon the court,
to testify for the defendant in this case, and had appeared from day to day
until the day when the case was called for trial, and were then absent without
his procurement or consent, we think he had used due diligence, and that he
is not to blame for their non-appearance.
The application states that the testimony of the witnesses cannot be procured
from any other source. We believe this is a sufficient answer to the 2d ground
assigned by the judge for overruling defendant's application. The defendant
distinctly states that the testimony he desires could be proved only by the
witnesses he had attached.
The statute, upon the point of negativing, in the application, the fact that
the testimony can be procured from any other source except the witnesses named
in the application, has done so in a particular way, and used certain words to
express it.
If the defendant did purchase the gelding from James Fuller, as he swears in his
application he did, it is probable that Fuller committed the theft himself, or
that defendant had reason for thinking so, and, if so, he reasonably believed he
could not prove that he purchased the gelding from him, the said Fuller, by
Fuller himself.
The statute prescribes the conditions upon which continuances are granted, and
a party will be entitled to a continuance when he brings himself strictly within
the terms of the statute. That bad men will avail themselves of this rule, to
delay or defeat the ends of justice, would be a good reason to change the law
in regard to granting continuances; whilst the law remains as it is, we should
enforce it. We deem it unnecessary to notice the other points mentioned in
defendant's assignment of errors.
*3 The judgment is reversed and the cause remanded.
Reversed and remanded.
Tex.Ct.App. 1876.
WILLIAM PERKINS v. THE STATE.
1 Tex.App. 114, 1876 WL 9036 (Tex.Ct.App.)
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=================================
It is an abuse of discretion to refuse a second continuance because of the absence
of witnesses, where accused had caused them to be attached, and they had given bonds
for their attendance, and did attend court until the day of trial, when they left
without his procurement, and where accused was reasonably certain of being able to
compel their attendance at the next term, though there was another witness who could
testify to the facts expected to be proved by the absent witness, such witness being
interested in seeing accused convicted.
*1 APPEAL from the District Court of Williamson. Tried below before the Hon. E. B. TURNER.
John Dowell and Phil. Claiborne, for the appellant.
A. J. Peeler, Assistant Attorney General, for the State.
ECTOR, Presiding Judge.
The defendant was indicted, July 16, 1874, for the theft of a gelding, the property of
J. W. Mears. He was tried January 11, 1876, found guilty, and his punishment assessed
at five years in the penitentiary. Defendant made an application for continuance,
January 11, 1876, which was overruled upon certain grounds stated by the judge in
the court below; to which ruling the defendant took a bill of exceptions.
After giving the style and number of the case, the court and term, the following
is a copy of defendant's application for a continuance:
"Now comes the defendant in the above entitled and numbered cause, in his own
proper person, who, after being by me duly sworn, upon oath says that defendant
cannot safely go into trial in said cause at this term of the court for want of
the testimony of Charles Cottingham, William Litton, and Bat Lane, all of whom
are resident citizens of the county of Bastrop, and state of Texas, whose testimony
is material to aid defendant in his defense in said cause. Affiant says that he
expects and can prove, by each and every one of said witnesses, that affiant is
not guilty of the charge as alleged in said indictment filed in this cause; and,
further, that affiant bought and purchased said gelding affiant is charged to have
stolen from one James Fuller, and paid him therefor a reasonable consideration,
and that affiant's connection with said gelding is perfectly innocent, and in perfect
conformity with law. That affiant has used due diligence to procure the attendance
and testimony of said witnesses at this term of the court, by causing an attachment
to be issued to said county of Bastrop for said witnesses on the 10th day of March,
A. D. 1875, which was duly served upon said witnesses by the sheriff of Bastrop
county, and the bond of said witnesses taken by said sheriff of Bastrop county, on
the 15th day of April, 1875, for the appearance of said witnesses at the next term
of the court thereafter, and from day to day until this case was tried; and that
said witnesses have, since said bond was taken, been in regular attendance upon this
court, except upon this day, and that affiant does not now know why said witnesses
are not in attendance; that said witnesses are not absent by the procurement or
consent of affiant; that this application is not made for delay; that the testimony
of said witnesses cannot be procured from any other source; and that affiant has a
reasonable expectation of procuring the attendance of said witnesses in this cause
at the next term of the court;" which was duly signed and sworn to before the clerk
of the court.
The defendant took a bill of exceptions to the action of the court on his application
for continuance. The district judge, in overruling the application for continuance,
as stated in said bill of exceptions, did so on the following grounds:
*2 "1st. The court having commenced on the 3d day of January, 1876, and the appellant,
being out on bail, should have taken some steps to procure his witnesses.
2d. The application itself discloses the fact there is another man by whom the fact,
to wit, that appellant had purchased the gelding, whose evidence, if the fact be true,
might be obtained; at any rate, if there was any reason why such person could not be
procured, that reason should be stated in the affidavit."
As to the first point, as has been said by the counsel for the defendant in their able
brief, we simply say that no better diligence could have been used by appellant to
obtain his witness than was used by him and stated in his application. Defendant states
that he had an attachment issued for his witnesses on the 10th day of March, 1875,
which was served upon them by the sheriff of Bastrop county, and their appearance bonds
taken by him, on the 15th day of April, 1875, for the next term of the district court
of Williamson county, and from day to day until the case was tried; and that his
witnesses, since the taking of their bonds, had been in regular attendance upon the
court, except upon the day when the case was tried. The defendant used all the diligence
the law required to procure the attendance of said witnesses, and the fact that he was
out on bond would not authorize or require him to take other steps to secure their
attendance, and it is an immaterial question as to when the court commenced or when
it adjourned. If appellant's witnesses had been attached, and were under bond for
attendance upon the court, to testify for the defendant in this case, and had appeared
from day to day until the day when the case was called for trial, and were then
absent without his procurement or consent, we think he had used due diligence, and
that he is not to blame for their non-appearance.
The application states that the testimony of the witnesses cannot be procured from
any other source. We believe this is a sufficient answer to the 2d ground assigned
by the judge for overruling defendant's application. The defendant distinctly states
that the testimony he desires could be proved only by the witnesses he had attached.
The statute, upon the point of negativing, in the application, the fact that the
testimony can be procured from any other source except the witnesses named in the
application, has done so in a particular way, and used certain words to express
it.
If the defendant did purchase the gelding from James Fuller, as he swears in his
application he did, it is probable that Fuller committed the theft himself, or that
defendant had reason for thinking so, and, if so, he reasonably believed he could
not prove that he purchased the gelding from him, the said Fuller, by Fuller
himself.
The statute prescribes the conditions upon which continuances are granted, and a
party will be entitled to a continuance when he brings himself strictly within
the terms of the statute. That bad men will avail themselves of this rule, to
delay or defeat the ends of justice, would be a good reason to change the law
in regard to granting continuances; whilst the law remains as it is, we should
enforce it. We deem it unnecessary to notice the other points mentioned in
defendant's assignment of errors.
*3 The judgment is reversed and the cause remanded.
Reversed and remanded.
Tex.Ct.App. 1876.
WILLIAM PERKINS v. THE STATE.
1 Tex.App. 114, 1876 WL 9036 (Tex.Ct.App.)
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A verdict will not be disturbed on appeal unless it appears to be against the evidence.
Where, clearly, the evidence does not warrant a conviction, the appellate court will reverse.
*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.
The indictment charged that, on December 19, 1877, the appellant did assault one John Miller,
and, with force and arms, take from his person and possession $245 in silver coin
and current money of the United States, specifically described.
Miller was a peddler, who traveled on foot, leading a horse, with his pack of
merchandise, in which he also carried his money. He testified that, on December
19, 1877, between eleven and twelve o'clock, as he was proceeding along a public
road, in Bastrop County, two men on foot came suddenly out of the brush and
demanded his money. The defendant was one of the men. He held a pistol on witness
while his companion rifled his pack and secured the money. They gave back to
witness $5 of his money, and told him that they lived in the neighborhood, and
would kill him if he said anything about the matter. The witness described the
money as alleged in the indictment, and was positive that the accused was one of
the two men who took it. The accused was not disguised in any way, but his
companion--a black-haired, dark-complexioned man--had a handkerchief over his
nose and mouth. The witness gave information immediately of the robbery.
Several other witnesses for the State, who knew the accused, testified that he
and a dark-complexioned, black-haired man were riding along the road on which
the robbery was done, in the forenoon of the day on which it was committed.
One of the witnesses for the State saw the two men described by the others
passing a freedman's house while the peddler was there, about nine o'clock in
the forenoon; but this witness did not know the accused to have been either
of the two.
Quite a number of witnesses testified for the defense, to establish an alibi,
but the significance of their testimony is dependent, in a great measure, upon
localities and distances not distinctly disclosed.
The jury found the accused guilty, and gave him ten years in the penitentiary.
A new trial was refused, and the only error assigned impugns the sufficiency
of the evidence.
G. W. Jones, for the appellant.
George McCormick, Assistant Attorney-General, for the State.
WHITE, J.
Appellant was indicted under article 2379, Paschal's Digest, for robbery, and
was tried and convicted, and his punishment affixed at ten years in the penitentiary.
His defense on the trial below was an alibi, and the only question raised on this
appeal in the able oral argument and brief of the distinguished counsel for
appellant is whether the evidence, as developed by the statement of facts, is
sufficient to uphold the verdict and judgment.
If "the Jew peddler," the party robbed, is to be believed--and the jury seem to
have thought his statement worthy of belief--then there can be not the slightest
question of the defendant's guilt, for he, the witness, unequivocally and
positively identifies him as the unmasked party who held the cocked pistol presented
whilst his companion searched and got possession of the money. And we further confess
that a thorough examination of the whole evidence has led us to the conclusion that
the jury were fully warranted in the conclusion they arrived at--that defendant was
one of the guilty parties. Other and abundant evidence, besides that of the peddler,
fixes defendant about the time and place of the commission of the crime, which has not
been successfully met, much less overcome, by his supposed alibi, and the proof adduced
to sustain it. This evidence all tends in such a manner to corroborate and support the
direct and positive testimony of the man who was robbed as to force the conviction upon
our minds that the defendant is one of the guilty parties.
*2 "It is the appropriate province of the jury to weigh the evidence, and, unless it
appears that their finding is against the evidence, this court has invariably refused
to disturb the verdict." Jordan v. The State, 10 Texas, 479; Shaw v. The State, 27
Texas, 750; March v. The State, 3 Texas Ct. App. 335.
The jury have found the appellant guilty, as we think, upon sufficient evidence; and,
concurring in this finding, and further believing that defendant has had a fair and
impartial trial, during which no material error was committed, the judgment of the
court below is in all things affirmed.
Affirmed.
Tex.Ct.App. 1878.
B. F. BALTZEAGER v. THE STATE.
4 Tex.App. 532, 1878 WL 9027 (Tex.Ct.App.)
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Evidence to corroborate the testimony of an accomplice must, of itself, and without
aid from such testimony, tend in some degree to connect the accused with the
commission of the crime; but the corroborative evidence need not suffice of itself
to establish the guilt of the accused.
*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W.
MOORE.
This capital conviction is one of the results of the midnight assassination of John
Black, a negro, by eight of his negro neighbors, instigated by revenge and guided by
superstition and imposture. The facts have been fully disclosed in the opinion rendered
by this court in the case of Jackson v. The State, 4 Tex.App. 292.
No brief for the appellant.
George McCormick, Assistant Attorney-General, for the State.
ECTOR, P. J.
The appellant, with seven others, was jointly indicted for the murder of John Black.
He was tried and convicted of murder in the first degree.
A motion was made for new trial, for the following reasons, to wit:
"1. Because the court erred in the charge to the jury.
2. The verdict is not supported by the evidence.
3. The verdict is contrary to the law and the evidence."
The motion for a new trial was overruled. The action of the court in overruling the
motion for new trial is the only error assigned by the appellant. The charge of the
court properly presented the law of the case to the jury. The main question arising
on this appeal is whether or not there was sufficient corroboration of the evidence
of the accomplice to justify a conviction of the appellant.
Article 653 of the Code of Criminal Procedure (Pasc. Dig., art. 3118) is as follows:
"A conviction cannot be had upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the offense."
We have heretofore had occasion to pass upon said article 3118. As we construe that
provision of the statute, the corroborating evidence must, of itself, and without the
aid of the testimony of the accomplice, tend, in some degree, to connect the defendant
with the commission of the offense. It need not, of course, be sufficient to establish
his guilt; for, in that event, the testimony of the accomplice would not be needed.
Nourse v. The State, 2 Texas Ct. App. 304; The People v. Coonan, 50 Cal. 449.
There was certainly sufficient evidence in this case, without the aid of the testimony
of the accomplice, to prove that John Black was forcibly taken from his house on the
night of December 24, 1876, by a crowd of men, carried about one mile and a-half, and
there murdered, as charged in the indictment, by them; and other evidence, besides that
of the accomplice, tending to connect the appellant with the commission of the crime.
This is another branch of the case of Burrill and Smith Jackson v. The State of Texas,
decided by this court during its present term, and we deem it sufficient to refer to the
opinion therein rendered for a decision of the questions in the case at bar. 4 Tex.App
. 292.
We have carefully considered all the evidence in the record, and, without going into a
minute comparison of the testimony, it is only necessary to state that the evidence is
sufficient to sustain the verdict.
*2 We have given this case the consideration which its momentous issues involve, and we
are clearly satisfied that no substantial right of the appellant has been interfered
with on the trial. The entire record discloses to us no error in the proceedings of the
court below.
The judgment of the District Court is, therefore, affirmed.
Affirmed.
Tex.Ct.App. 1878.
PRIOR JONES v. THE STATE.
4 Tex.App. 529, 1878 WL 9026 (Tex.Ct.App.)
END OF DOCUMENT
=======
In a murder trial the evidence of an accomplice together with corroborated evidence held
sufficient to sustain a conviction.
Applications for continuances not based on the statute, and which do not meet its
requirements, are addressed to the discretion of the court, and should be granted or
refused according to circumstances.
The refusal of a continuance, asked by accused, on the ground that a witness by whom
he expected to prove an alibi had been confined in childbirth the preceding week, and,
being still unable to obey process, none had been obtained to produce her, was a proper
exercise of judicial discretion; the application, which was insufficient as a statutory
application, being addressed to the discretion of the court.
In the trial of two out of eight persons jointly indicted for murder, the state used an
accomplice as a witness, and the court instructed the jury that his testimony implicating
those not on trial need not be corroborated, and, having otherwise charged the law
controlling accomplice testimony, instructed that contradiction or want of corroboration
of the witness in immaterial matters was of no consequence. Held, in connection with
the rest of the charge, and with the evidence adduced, not a charge on the weight of
evidence, or otherwise erroneous.
*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.
A very full disclosure of the material evidence in this case will be found in the opinion
of this court, which, in its recital, follows the language of the statement of facts.
All the parties implicated in the murder were freedmen, as also was John Black, the
deceased; and the record shows the terrible issue which imposture and superstition can
engender out of ignorance.
The jury found the appellants guilty of murder in the first degree, and judgment of
death followed, in conformity with the law.
The six other parties jointly indicted with the appellants were Henry Owens, Thomas
Robinson, William Peterson, Prior Jones, Steve Robinson, and one Sam, whose name was
otherwise unknown to the grand jury, but who, doubtless, is the character whom the
witnesses call Sam Squirrelhunter, the fortune-teller.
G. W. Jones, D. B. Orgain, D. Moore, and John B. Rector, for the appellants.
George McCormick, Assistant Attorney-General, for the State.
WINKLER, J.
The appellants, together with six others, were indicted in the District Court of Bastrop
County for the murder of one John Black, alleged to have been committed on December 23,
1876. These appellants were jointly tried, separately from the others, at the October
term, 1877, of the court, were convicted of murder in the first degree, and have taken
this appeal.
On the eve of the trial the appellant Burrill Jackson moved the court to grant him a
continuance, and made an affidavit in support thereof, in which he stated "that he
cannot safely go to trial at this term of court, on account of the absence of Betty
Jackson, a material witness for his defense. Defendant says he expects to prove by
said witness that he was not present on the day and at the place when and where the
murder of John Black is said to have taken place, but that, at the time and on the
day said John Black was murdered, defendant was at home with said Betsy Jackson, and
was not present then, or at any other time, when John Black was murdered. Defendant
says he has caused no process to issue for said witness, because it would have been
impossible for her to have come to court, she, the said witness, having, on last Friday
, been delivered of a child, and is still in child-bed, unable to answer to any process
of this cause."
It was further stated in the affidavit that the witness resided in Bastrop County, and
was not absent by his procurement or with his consent, and that a continuance was not
asked for delay. The motion was also supported by the affidavit of one Hubbard, as to
the residence and physical condition of the witness, in which it is stated she lived on
affiant's place, six miles from the town of Bastrop, and fixing the date of her
confinement as October 19, 1877. The indictment was filed April 25, 1877; the application
for a continuance was sworn to and filed October 23, 1877. The record is silent as
to when the accused was arrested.
*2 On a hearing of the motion it was overruled by the court, and a continuance was
refused. To this ruling of the court the defendant excepted, and in certifying to the
bill of exceptions the presiding judge appends the following explanation:
"The court believed, from the length of time since the arrest of defendant without any
process to said witness, that said application was not made in good faith, but for
delay."
The refusal of the court to continue the case is the basis of the first error assigned,
and also the first ground in the motion for a new trial.
Testing this application by the rule laid down in the Code of Criminal Procedure, article
518, governing a first application for a continuance of a criminal case by the defendant,
for the want of an absent witness (Pasc. Dig., art. 2987), it must be held insufficient
as a statutory application, in that there is shown to have been no diligence employed
to procure the attendance of the witness, which is required by the statute. Wall v. The
State, 18 Texas, 693; Baker v. Kellogg, 16 Texas, 117; Murry v. The State, 1 Texas Ct
. App. 174; Grant v. The State, 2 Texas Ct. App. 163.
Applications for continuances not based upon the statute, and which do not meet its
requirements, are addressed to the discretion of the court to whom they are made, and
should be granted or refused according to the circumstances, and will not be revised
on appeal except in a clear case of abuse of that discretion. Baldessore v. Stephanes,
27 Texas, 455; Nelson v. The State, 1 Texas Ct. App. 41.
This discretion, however, is not an irresponsible one, but must be exercised within
the bounds of settled rules of practice. Mr. Wharton says "the general rule is that
a continuance will be granted on an affidavit setting forth the absence of a material
witness, and alleging that his attendance will be procured at the next court, and
that due diligence has been used in attempting to procure his attendance." Whart. Cr.
Law, sec. 2930. But "a continuance will not be granted on such an affidavit when the
prisoner has been guilty of laches or delay, or of any connivance." Ibid., sec. 2932 b.
One of the requisites of the foregoing is that the absent witness will be produced at
the next court.
In Hyde v. The State, 16 Texas, 445, we find authority on the proposition we are
considering. Mr. Justice Wheeler, in delivering the opinion, makes the following apt
quotation from the opinion of Sutherland, J., in The People v. Vermillyea, 7 Cow. 390:
"The rule is substantially the same in civil and criminal cases, though in the latter
the authorities all agree that the matter is to be scanned more closely, on account of
the superior temptation to delay and escape the sentence of the law. In cases where the
common affidavit applies, the court has no discretion; the postponement is a matter of
right, resting on what has become a principle of the common law. But when there has
been laches, or there is reason to suspect that the object is delay, the judge at the
circuit may take into consideration all the circumstances, and grant or deny the application
at his pleasure. When the subject takes this turn, the application ceases to be matter
of right, and rests in discretion."
*3 From this opinion we make this further extract: "In the case of Rex v. D'Eon, 3 Burr.
1513 (s. c., 1 W. Bla. 510), the principles upon which courts are to act in postponing
the trial of a cause on account of the absence of witnesses are clearly laid down, and
have since been received as the settled law in English and American courts. To entitle a
party to a postponement of the trial, three things are necessary: first, to satisfy the
court that the persons are material witnesses; second, to show that the party applying
has been guilty of no laches or neglect; third, to satisfy the court that there is
reasonable expectation of his being able to procure their attendance at the future time
to which he prays the trial to be put off."
The question here, then, is, Did the court below err in overruling the application of one
of the defendants for a continuance on the grounds set out as above? From the facts that
the indictment was filed in April, and no legal effort made to secure the attendance of
the witness until October; that the object of obtaining the witness was to prove an alibi,
a fact not shown to have been exclusively within the knowledge of the absent witness; the
application not being in compliance with the statute, and not meeting the rules as above
laid down, either in Hyde v. The State or by Mr. Wharton, nor showing that there was a
reasonable expectation of procuring the attendance of the witness at the next term of the
court, we are of opinion that there were sufficient grounds to justify the court in
believing that the application was made for delay, and that it but exercised proper
judicial discretion in overruling the application for a continuance of the case.
The second alleged error is set out as follows: "The court erred in proceeding with
the call of the special venire over objections of defendants' counsel, as set forth
in the bill of exceptions."
The bill of exceptions contains two causes of complaint: first, that at some stage of
the proceeding, but at what stage is not shown by the record, it appeared that five
persons whose names were on the copy of the venire served on the defendant, though
upon the regular jury drawn by the jury commissioners, had not been served by the sheriff;
second, that it subsequently appeared that, upon the further call, four other jurors who
had been served were not in attendance. In each case, when the trouble was made known,
the court proposed to suspend the call and order attachments for the absent jurors, which
offer was declined by the defendants; and, with reference to the last objection, it is
stated in the bill of exceptions that "the call of the venire was proceeded with without
opposition, and the jury was made up without exhausting said venire."
In this proceeding we find no error of which the appellants can be heard to complain.
When the copy of the special venire was served, if there was any objection to it, exception
should have been taken to it in writing, so as to have the matter settled by the court
before proceeding to impanel the jury, and in the manner pointed out by chapter 3 of the
Code of Criminal Procedure. Pasc. Dig., art. 3031 et seq. The court was not expected
to delay the trial on account of the absent jurors. Any supposed irregularity, such as
is shown by the bill of exceptions, must be considered as having been waived by the
acquiescence of the accused in the completion of the panel without objection.
*4 The case of Bates v. The State, 19 Texas, 122, cited by counsel, is not analogous to
the present case, and does not support the views contended for by the counsel. For aught
that is shown from the record, the jury was selected without the accused having
exhausted their peremptory challenges, and from the special venire served upon them;
and it is not made to appear that the jury was anything else than a fair and impartial
one in all respects.
The third and fourth assignments of error relate to the charge of the court, and may,
with propriety, be considered in connection. They are set out in the transcript as
follows:
"3. The court erred in its instructions to the jury.
4. The court erred in refusing instructions asked by the defendants."
In determining the sufficiency of the charge, reference must be had to the evidence
adduced on the trial, as it is by the testimony, under the pleadings, that the
sufficiency of the charge must be tested. It is in this manner we ascertain what is
the law applicable to the case upon the questions involved as they arose upon the
trial. It may not be amiss to state, in this connection, that a witness who acknowledges
himself to have been a participant in the alleged murder, or, at any rate, present when
it was perpetrated, was introduced and testified in behalf of the State, which rendered
it necessary for the court to instruct the jury on the law as to the value of the
testimony of an accomplice, and the necessity of corroboration to warrant a conviction.
That portion of the general charge on the subject is in the following language, which,
for convenience, we have separated into paragraphs and numbered:
1. "A conviction cannot be had upon the testimony of an accomplice--that is, any one
aiding or abetting, in any way, an offense--unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the corroboration
is not sufficient if it merely shows the commission of the offense.
2. If the jury believe that there is corroborating testimony connecting the defendants
who are on trial with the offense, then it is immaterial if there is not corroborating
testimony as to other parties not on trial.
3. It is alone the defendants on trial whom you are trying, and whose guilt or innocence
you are examining into.
4. The want of corroboration in the testimony not material, or contradiction where
immaterial, is of no consequence in determining the guilt of the defendants."
And immediately following is this further instruction:
"If you have any reasonable doubt of the guilt of the defendants, or either of them,
you will acquit such."
It is the fourth paragraph of the charge that is particularly objected to, and pointed
out in the argument of counsel for appellants as being a charge upon the weight of the
evidence, and calculated to mislead the jury in determining the question of the guilt
or innocence of the accused.
*5 After a careful consideration of this portion of the charge, in connection with those
portions which immediately precede, and which immediately succeed, the portion
complained of, we are of opinion that, presuming the jury to have been composed of men of
ordinary intelligence, it was not liable to the objections urged against it by the counsel.
If we bear in mind that the jury had just been charged that they would not be authorized
to convict upon the uncorroborated testimony of an accomplice, and that, in order to
convict, they must believe that there is corroborating testimony tending to connect the
defendants then on trial with the commission of the offense--all of which was correct
law, as has been repeatedly held, both by the Supreme Court and this court--we fail to
perceive how the minds of the jury could have been diverted from the main issue before
them; and no injury could have resulted to the defendants by the jury being told that
it was immaterial whether there was corroborating evidence as to other parties not on
trial, or instructed as in paragraph 4 of the charge as set out above; and, especially,
as they were told, in very pointed and expressive language, that "it was alone the
defendants on trial whom you are trying, and whose guilt or innocence you are
examining into." The charge asked by defendants on the subject, whilst more full,
is not a more accurate enunciation of the law than that given by the court. The court
evidently endeavored to confine the jury to a consideration of the case of those on
trial, and none other, and to the vital proposition in the case. The rule laid down
by the court is substantially the rule prescribed by the Code, as follows:
"A conviction cannot be had upon the testimony of an accomplice, unless corroborated
by other evidence tending to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows the commission of the offense."
Code Cr. Proc., art. 653 (Pasc. Dig., art. 3118).
It was not sufficient for the corroboration to merely show that John Black had been
murdered, but it must tend to connect the defendants with the murder. As to who are,
in law, accomplices, in the sense requiring corroboration to convict, see Davis v. The
State, 2 Texas Ct. App. 588, and authorities there cited, and Jones v. The State, 3
Texas Ct. App. 575.
After a careful consideration of the evidence as set out in the statement of facts, we
are of opinion that there was no such error in the charge of the court as given, or
in refusing the instructions asked by the defendants, as would warrant a reversal of
the judgment.
There remains to be considered the question raised by the fifth and last assignment
of error: Did the court err in overruling the defendants' motion for a new trial? The
main ground in the motion, not already considered, is that the verdict is contrary to
the law and the evidence.
As to the evidence, the proof is clear that the deceased was taken from his home in
Bastrop County, at a dead hour of the night, and most brutally murdered, about the time
charged in the indictment. The main question on the trial was to ascertain who were the
guilty perpetrators of the deed, and whether these appellants were of the number.
*6 The following extract is made from the statement of facts, and contains the entire
testimony of the alleged accomplice:
"George Veal, witness for the State, says that he knows the deceased, John Black; knows
Smith Jackson and Burrill Jackson, the defendants in this case; says they are in court,
and parties defendant; that he [witness], Bill Peterson, Tom Robinson, Sam Squirrelhunter,
Burrill Jackson, Smith Jackson, Hoodlin Henry [Henry Owens], Mose, Prior Jones, Richard
Gradington, and Freeman Shelton, took John Black out and hung him, about one and a-half
miles from John Black's residence, in Bastrop County, state of Texas; hung him by the
neck and left him dead. Smith Jackson, Burrill Jackson, Freeman Shelton, Sam
Squirrelhunter, Bill Peterson, and Mose Thomas were appointed at a meeting for
the purpose, and were the parties that went into the house of John Black, about
twelve o'clock, dragged him out, tied his hands behind him, and carried him off."
On cross-examination: "Hung deceased because they thought he had killed Hoodlin
Henry's child. Had three meetings at three different times before hanging; had a
meeting on the night of the hanging, and two other meetings on two other nights.
That witness, Prior Jones, Steve Robinson, Richard Gradington, and Tom Robinson
met at first meeting; that at third meeting, no one present but those at Black's
house. Smith Jackson and Burrill Jackson were not present at two first meetings.
At time of hanging, at which meeting Sam Squirrelhunter, Bill Peterson, Mose
Thomas, Smith Jackson, Burrill Jackson, and Freeman Shelton were appointed to
go in the house and bring deceased out; and those six did go in the house and
brought him out. Some light in the house; could see these parties in the house;
so dark could not distinguish them from where I was; parties were disguised.
If had not known who the parties were, could not have distinguished or recognized
them, or known who they were. Hoodlin Henry [Henry Owens] was round at the back
door, opposite to where parties went in house; Hoodlin Henry did not go in house.
Prior Jones rode the mule that dragged the deceased. That if the deceased had
told where the child was, they would not have hung him. That parties, in their
meetings, had never agreed to hang deceased if he told where the child was; if he
did not tell, to hang him. Tom Robinson was only one in favor of hanging him any
way; that the agreement was to go and take John Black out and scare him. They
thought, by threatening to hang him, he would tell where the child was; that they
believed he [Black] knew what had become of the child. That they had searched for
the child, and could not find it; child been gone about six weeks, and was last
seen with boys of deceased. The missing child was about six years old. That they
sent for the man Squirrelhunter, that said he was a fortune-teller and could tell
all about the missing child, and that Squirrelhunter came and met with them in
their meetings, cut his cards and looked in some coffee- grounds, and told them
that John Black knew all about the missing child, and knew what became of the
child; and that they all believed it. That there were present at the tree where
and when John Black was hung, Prior Jones, Sam Squirrelhunter, Tom Robinson,
Henry Owens, Richard Gradington, and witness; don't know whether the defendants,
Smith Jackson and Burrill Jackson, were at the hanging or not; they started
from the house with John Black, and were with him a hundred yards from the house.
Henry Owens held rope and pulled deceased up; let him [deceased] down, and
demanded of him where the child was; let him down again, and demanded where the
child was; and Tom Robinson cried, 'Hang him! that he would ruin all of them if
turned loose,' and so they hung him up, and tied the rope, and left him hanging.
Witness couldn't see defendants at the tree, because so dark; could only recognize
voices as would speak; but there were others present at the hanging, but I could
not distinguish them in the dark. That some parties that went to the house had
floured their hands and necks. The child is now alive, and with its parents."
*7 This is the entire testimony of one who was, by his own confessions, present at
the perpetration of the murder and conversant with the purposes, plans, motives,
and intentions of the parties who committed the act, and who was, and we think
properly, regarded at the trial as a participant in the commission of the crime,
and whose evidence it became necessary to corroborate by the testimony of other
witnesses, not only as to the fact that John Black had been murdered, but tending
to connect these appellants with the commission of the crime.
To what extent is this accomplice corroborated by the testimony of other witnesses?
Barbary Black testified that she was in the house from which the deceased was taken
out and hung. She says: "The confusion and noise waked me up; did not know time of
night; was some fire in the house, a chunk burning; took one of the parties to be
Hoodlin Henry, and one to be Bill Peterson, and one, uncle Smith Jackson; did not
know for certain it was either; was very much frightened."
James Hord testified "that Burrill Jackson had borrowed his coat the night John Black
was hung, after supper; that it was a bluish coat, cloth; had it about two years;
borrowed it after supper, at house of defendant Burrill Jackson. I stayed at my cousin's,
about one hundred yards from defendant Burrill Jackson; that he told Eliza, the wife
of deceased, on the next Tuesday following, that he loaned his coat to Burrill Jackson
on that night."
B. M. Hubbard testified, among other things: "We tracked two of the horses' tracks from
Black's dead body into Burrill Jackson's horse-lot; and that two of the tracks stopped
there, and two or three went on. The two horses in Burrill Jackson's lot were horses
trailed from the tree to which Black's body was hung. One of the horses that made the
tracks was in Burrill Jackson's lot, and was his horse. It rained on the night of the
hanging, just before Black was taken from his house, so that the tracks of the parties
who did the hanging could be easily traced--all tracks before the rain being completely
blotted out by the rain, and those made after the rain being very plain." Agreeably to
the testimony of this witness, the deceased was hung on the place of the witness.
Eliza Black, who appears to have been the wife of the murdered man, was on the stand as
a witness for the State, and from her testimony, as set out in the statement of facts,
we make the following extract:
"John Black is now dead; he came to his death by hanging; that on Saturday night before
last Christmas some parties came to John Black's house, suppose about midnight, masked,
and took John Black out and hung him. They broke the door down, and four of the parties
came into the house; that the names of the four who came in the house were Tom Robinson
, Bill Peterson, Smith Jackson, and Burrill Jackson, and that they had guns in their
hands; that they told John Black to march out, and took John Black out and carried him
off. Witness saw John Black, deceased, next day when he was brought back home; he was
then dead. This occurred in Bastrop County, state of Texas, on Saturday night before
last Christmas, being about nine months ago. I recognize Smith Jackson and Burrill
Jackson, the defendants now in court, as two of the parties who came into the house
and carried John Black away."
*8 During a seemingly rigid cross-examination, this witness said, among other things,
that Burrill Jackson had on Jim Hord's coat, and that she only recognized the parties
in the house from their general appearance, but knew them; that she knew the defendants
well, having lived close to them for about five years.
This testimony, we are of opinion, affords, if true, a sufficient amount of corroboration
of the testimony of the supposed accomplice to entitle his evidence to consideration
by the court and jury.
The evidence was all before the jury. Not only the words spoken by the witnesses, but
their manner and bear??ng whilst testifying in a most momentous investigation, were
open to view and to cross-examination, as well as to the comment and criticism of
counsel. The jury must have believed the testimony, else they could not, under the
charge of the court, have found the defendants guilty. The whole case, with its
evidence, again passed in review before the judge on the hearing of the motion for
a new trial, and the testimony was again held to be sufficient to support the
verdict. This court would only be justified in setting aside a verdict upon the
evidence when it is shown that the verdict is against the evidence, or without a
sufficient amount of legal testimony to justify a conviction for the crime. We
fail to discover any error in the action of the court below in refusing a new
trial.
A point is made in argument to the effect that the evidence tends to show that, by
the treatment the deceased is shown to have received at the hands of the mob who
finally hung him, he had been deprived of his life before he was finally hanged by
the neck, either by roughly being dragged away to the final scene or by strangulation
by the rope fastened about his neck, by which he was dragged along; and it is not
to be denied there is some testimony tending in that direction. Yet this but creates
a conflict in the testimony at most, with which it was the peculiar province of the
jury to deal, and is wholly irreconcilable with the history of the transaction
as detailed by the accomplice, supported, as we have seen, by other testimony. As
to the sufficiency of the testimony, the court below was in a better condition to
determine than this court, who have but the bare record as a guide, whilst, below,
the witnesses were personally present.
We are not unmindful of the importance of the opinion now being rendered, or of
the solemn responsibility resting upon the court in passing upon the merits of this
case as shown by the record before us, and we have brought to its determination the
most careful attention, without discovering that the appellants have not had a fair
and impartial trial, in which every material right of theirs has been carefully guarded;
and they having been legally adjudged guilty of having participated in the perpetration
of a heinous crime, upon a sufficiency of competent testimony, our duty is plain.
The judgment of the District Court is affirmed.
*9 Affirmed.
Tex.Ct.App. 1878.
BURRILL AND SMITH JACKSON v. THE STATE.
4 Tex.App. 292, 1878 WL 8986 (Tex.Ct.App.)
END OF DOCUMENT
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A detective employed by merchants to discover who burglarized their store, agreed
with defendant and another, who were suspected of the crime, to break into and rob
the store. The merchants furnished the detective with a key, and were prepared to
arrest the parties when the entry was effected. Held that, since the conspiracy
was complete when defendants entered into the agreement, their guilt was not
affected by the subsequent consent of the merchants and the co-operation of the
detective in the entry of the store, if neither the merchants nor detectives
suggested the offense or originated the criminal intent or agreement.
The crime of conspiracy to commit an offense is complete when the conspirators enter
into the criminal agreement, and notwithstanding they do not proceed to consummate
it.
The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a
lawful act for an unlawful purpose, and the offense is complete when the confederacy
is made.
Where a merchant employed a detective to discover who entered and robbed his store,
and the detective at his instance consorted with two persons whom the merchant suspected
were guilty, and they agreed with each other and the detective to break in and rob it,
and the merchant afterwards furnished the detective with a key to get in, and prepared
to arrest them when it was done, the conspiracy was complete when the agreement was made;
and hence their amenability for the conspiracy was not affected by the merchant's
subsequent consent, and the cooperation of the detective in effecting the entry, unless
the merchant or the detective suggested the offense or instigated the agreement.
*1 APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. MOORE.
Charley Foster, the detective, testified for the state. According to his testimony the
burglary was first suggested by the appellant. The substance of his statements, in
other respects, is condensed in the third head-note. On his cross-examination he denied
that, on the day after the store was entered, he told L. Johnson, at Johnson's store,
in Bastrop, that it took him two or three weeks to get Hand and the appellant to
consent to break into Higgins & Garwood's store; and, further, denied that, at a
certain bar-room in Bastrop, a few days after the burglary, he stated that he got
$50 for getting the boys into the store, and that he would catch anybody for that amount.
L. Johnson, testifying for the defense, explicitly contradicted the first of Foster's
denials; and D. C. Claiborne, also for the defense, contradicted the second.
All other facts of any materiality are indicated in the opinion.
G. W. Jones and J. P. Fowler, for the appellant, filed an able brief.
George McCormick, Assistant Attorney General, for the State.
ECTOR, P. J.
The appellant and N. S. Hand were jointly indicted for a conspiracy to commit burglary.
The defendant, Johnson, was alone tried. The jury found him guilty as charged in the
indictment, and a judgment was rendered adjudging the defendant guilty of a conspiracy
to commit robbery. Because of this error in the judgment it must be reversed.
The judge charged the law, in substance, as embraced in articles 6576 and 6577,
Paschal's Digest, as follows: "A conspiracy is an agreement entered into between
two or more persons to commit" any offense, such as burglary. "The offense of
conspiracy is complete, although the parties conspiring do not proceed to effect
the object for which they have so unlawfully combined."
It is insisted by defendant that the charge of the court in this case is defective
in this, that it fails to give the law as embraced in articles 6578 and 6579,
Paschal's Digest. A critical examination of the entire charge will show that it
is not liable to objection on this account.
The second error assigned is that the court erred in refusing to give the charges
asked by the defendant.
The court, in its general charge, had already, among other instructions, told the
jury that, "If you believe from the evidence that defendant did, as charged in
the indictment, conspire with N. S. Hand to commit burglary, you will convict. If
you believe from the evidence that Higgins & Garwood did employ a detective merely
to discover and secure the parties they suspected of robbing their store, and that
the original intent, if any, to commit the offense was not influenced or suggested
by the detective, then the agreement of said detective to enter a conspiracy would
not excuse the defendant. But if said detective suggested the offense, and in
any way created the original intent and agreement to commit the same, you will
acquit. If either Johnson or Hand did not enter into the agreement, then you
will acquit."
*2 The case at bar is different from that of Pigg v. The State, 43 Texas, 108,
and of Speiden v. The State, 3 Tex.App. 156, decided by this court at its last
Tyler term, which are cited by defendant's counsel. In the former the defendant
and Thomas Smith were indicted for the theft of a horse, and the state was
required to show that the horse was taken without the consent of the owner.
Pigg and Smith were suspected of being engaged in horse-stealing; Christian,
the alleged owner of the horse, requested one Snyder to get into the confidence
of the defendants and learn whether they were horse-thieves or not; which Snyder
did. Pigg and Smith told him that they had Christian's horse picked out, and
Snyder agreed with them to engage in stealing the horse. Witness Snyder so
conducted the affair that he was present when defendants, Pigg and Smith, took
the horse and led him out of the stable, when they were arrested. Christian
testified that he had given no consent that his horse should be taken, but
corroborated Snyder in the arrangement by which the defendants were detected.
The court held that it is not consent to the taking for the owner to obtain the
aid of a detective who, for the purpose of detection, joins the defendant in a
criminal act designed by the defendant and carried into execution by actual
theft; but that, if Christian or the detective suggested or induced defendant
to steal the horse, and, having induced such original intent, he, or the person
acting for him, acted as one of the party throughout, then the want of consent
would not be established, and the defendant should be acquitted.
And in the other case, that of Speiden v. The State, the defendant was indicted
for burglary by breaking into a bank, with the intent to commit theft. The facts
in that case show that defendant had entered the bank at the solicitation of a
detective rightfully in possession with the consent of the owner; and this court
held that he could not rightfully be convicted of burglary, no matter what his
guilty intent.
In the case now before the court, it will be borne in mind that the offense is
complete under the indictment when it is shown that defendant had actually entered
into an agreement with N. S. Hand to burglariously enter the house described in the
indictment, in the manner as therein alleged, with intent to commit a theft, and
that the offense of conspiracy is complete although the parties conspiring do not
proceed to effect the object for which they have so unlawfully combined. The fact
of such conspiracy once being established, the subsequent consent of the owner
(or those acting for him) for the conspirators to enter the building will not
affect their guilt in the least, unless the evidence shows that Higgins and Garwood,
or the detective employed by them, suggested the offense, or in some way created
the original ??ntent or agreement to commit the offense as charged.
The exception to the charges given, and to the refusal of the court to give the
instructions asked by defendant, are not sustained by an examination of those
charges. Those given were substantially correct, and those asked by the defendant,
and not embraced in the general charge, were ??ramed in language more favorable
to the accused than the ??tatement of facts and the law would justify.
*3 We believe that we have noticed all the errors assigned which may aid in any
manner in another trial of the cause, when the defendant will have an opportunity
to procure the newly-discovered evidence set out in his motion for a new trial.
The judgment is reversed and the case remanded.
Reversed and remanded.
Tex.Ct.App. 1878.
JOHN JOHNSON v. THE STATE.
3 Tex.App. 590, 1878 WL 8889 (Tex.Ct.App.)
END OF DOCUMENT
===============
APPEAL from the County Court of Travis. Tried below before the Hon. A. S. Walker.
*1 The indictment in this case was for bigamy. It charged that the appellant, having a
living wife, on the fourth day of December, 1881, unlawfully married one Rebecca
Garner. He was convicted, and was awarded one year's confinement in the penitentiary
as punishment.
John Crawford testified for the State that he knew the defendant and knew his first
and his second wives, both of whom he pointed out in court. The defendant's first
wife lives on Baldwin's place, in Bastrop county. They were married in April or
March, 1879, and immediately commenced the cultivation of a crop of corn. The
witness heard the defendant speak of having borrowed a horse from Charles Caldwell,
and riding to Bastrop county, where he got married. His first wife is a cousin
of the witness. The witness then lived in Hays county, and had lived in the same
neighborhood nine years. When the witness went to Bastrop county in March or
April, 1879, defendant and his first wife were living together as man and wife,
and the defendant told the witness that he and the witness's cousin (the first
wife with whom he was living) were married. The first wife is still living, and
lives on the same place. From the time the defendant and she were married, up
to the time when the witness left, in August, 1879, they lived together. The
witness has heard of the defendant living in Hays and Travis counties. He lived
with this first wife in Hays county for a short time. The witness first heard
that the defendant had married again in April, 1882, and with his second wife
was living on Bear Creek. The witness had never heard the defendant say that
he was married to this last wife.
Cross-examined, the witness testified that he had known the defendant for fifteen
or sixteen years, and declared that he and the first wife were married in
Bastrop county. He had heard the defendant so assert the fact, and knew that
they lived together as man and wife. They separated in August, 1879. The
defendant was a man of poor education and could neither read nor write. The
witness was a man of limited education, but could read a little, and could
sign his name. He identified a letter offered in evidence as one which the
defendant showed him at a camp on Bear Creek, but declared that he did not
know who wrote it. He did not write it, nor did he ever see it until the
defendant showed it to him on the occasion spoken of. The witness saw J. Crawford
on the day that he first saw the letter and talked to him about it. He told J.
Crawford that he did not write the letter, and that it was his impression that
it was written by the defendant's first wife. Witness told his uncle
(J. Crawford presumably) that he did not know Caroline's handwriting, and
that the handwriting looked more like that of his, witness's, wife, or of
Miss Martin, than it did like the handwriting of the defendant's former wife.
The witness reiterated, on re-examination, that he did not write the letter,
and that he did not know who did. He did not know that he had ever seen
handwriting similar to it. The letter was signed with the witness's name,
but the name was not correctly spelled. The name to the letter was signed
""Crofford," whereas his name properly spelled was "Crawford." The witness's
wife and Miss Martindale knew how to spell his name. The second wife was
present when the defendant showed the witness the letter. He brought the
letter to the witness from his camp. The first wife, before her marriage
with defendant, was a widow, named Catherine Peebles.
*2 Frank Brown, county clerk of Travis county, being sworn, produced the
record of marriages, showing a marriage license issued to defendant and
Rebecca Garner, December 13, 1881, and returned executed by D. C. Pace,
justice of the peace.
D. C. Pace testified that, in December, 1881, he was a justice of the
peace in Travis county, and as such performed the marriage ceremony
between the defendant and Rebecca Garner, at Jake Crawford's place, in
Travis county. Jake Crawford, the witness's father, and some children,
were present.
The letter referred to reads as follows:
"Nov. 18, 1881, Bastrop County.
Mr. Thomas Watson:
It is with pleasure that I sit down to inform you that I am well, and hope
you are the same. Tom, I am sorry to tell you that your wife is dead and
has been for a week, but I suppose as you and her is separated, you do not
care to hear anything about it. Times is good here, and I wish you would
come down and see us and spend a few days and talk of old times. I have not
much to say this time, but write and let me know how you are getting along.
Hoping to hear from you soon,
I remain your friend,
JOHN CROFFORD."
Rebecca Garner testified, for the defense, that she could neither read nor
write, but she had seen the letter used in evidence. The defendant brought
it to her, sealed up. She opened it and laid it away ten days before she
and the defendant were married. The witness's daughter looked at it, but could
read only the first part of it. Her father, William Crawford, read a part of
it, and then the witness gave it to her brother. The witness, her daughter,
and her aunt took it to Mrs. Bates, who read it to her.
On cross-examination, the witness stated that she would not have married the
defendant had she known that his first wife was living, nor did she believe
that the defendant would have entered into a marriage with her if he had known
it. He told the witness of his living wife long before their marriage, and it
was understood between the two that he should secure a divorce, after which
they were to be married. The witness had no reason to doubt the statements of
the letter reporting the death of the defendant's first wife, and made no inquiry
concerning the truth of that report. The defendant had always treated her and
her children kindly. The two have not lived together since the first rumors that
the first wife survived commenced circulating.
Mary Crawford testified that she was sixteen years old, and was the daughter
of the last witness. She saw the letter in evidence when the defendant received it.
It was then opened, and postmarked "Caldwell P. O., Bastrop county." It was opened,
and the witness read part of it. It was then carried to Mrs. Bates, who read it
entire in the presence of the witness.
Jake Crawford, for the defense, testified that he was a brother to Mrs. Garner.
He was illiterate, and could neither read nor write. At the request of defendant,
the witness went to Bastrop county some three years ago to move him, and to prevail,
if possible, upon his first wife to return to him. She refused. The defendant did
not quit his first wife, but was driven off by her. She is a half sister to the witness.
The witness procured the license for the defendant to marry Rebecca Garner, his last
wife. He then knew of the letter reporting the first wife's death, and had he not
believed it, he would not have permitted this last marriage. John Crawford told the
witness that the handwriting of the letter looked like that of his wife or Mollie
Martindale, and that he did not write it.
*3 Madden, deputy postmaster at Oatmanville, testified that he remembered giving
the defendant a letter, about the last of November, 1881, which he supposed
came in due course of mail. It was the only letter he remembered that the
defendant ever received at that office.
H. C. Still testified that he had known the defendant for about four years.
He knew him to be very simple, but if he had any bad traits about him, the
witness did not know it.
Mary Crawford recalled, stated that she was mistaken in testifying that the
letter when received bore the "Caldwell P. O." postmark. It was postmarked
"""""Bastrop County," in a circle.
John Crawford in rebuttal testified that he lived within a mile of Caldwell
Postoffice. It is a small postoffice and has no stamp postmark. The postmaster
writes the postmark. The witness on cross-examination stated that he hated the
defendant.
The appellant's motion for new trial complained of the charge of the court, and
that the verdict was against the law and the evidence. The motion being overruled,
appeal was prosecuted.
An indictment for bigamy need not allege the name of the first spouse.
On a trial for bigamy, as to which the defense was an innocent mistake as to
the first wife's death, the judge charged that, if the mistake did not arise
from want of proper care, it constituted a defense, and then proceeded to
define what proper care was. Held, that this definition should not have been
given any more than of any common untechnical words.
Article 45 of the Penal Code, Vernon's Ann.P.C. arts. 40, 41, provides: "No
mistake of law excuses one committing an offense; but if a person laboring
under a mistake as to a particular fact shall do an act which would otherwise
be criminal, he is guilty of no offense." Article 46 of the Penal Code, Vernon's
Ann.P.C. art. 41, provides: "The mistake as to a fact which will excuse, under
the preceding article, must be such that the person so acting under a mistake would
have been excusable had his conjecture as to the fact been correct; and it must
also be such mistake as does not arise from a want of proper care on the part of
the person committing the offense". Held, that it was the duty of the court to
charge the substance of the above articles, leaving to the jury to determine from
the evidence whether or not the mistake of the defendant, if a mistake, arose
from want of proper care.
R. J. Hill and T. H. Wheless, for the appellant.
H. Chilton, Assistant Attorney General, for the State.
WILLSON, J.
The defendant was convicted upon an indictment, the charging portion of which is
as follows: "did then and there unlawfully marry Rebecca Garner, he, the said
Watson, then and there having a wife then living." Exceptions to this indictment
were overruled. The exceptions were, that it did not put the defendant upon notice
of the charges against him, in this: that it does not charge the name of the alleged
first wife of the defendant. While this indictment does not follow established
precedents (2 Whart. Prec. Indict, 985; 2 Archibold's Cr. Pr. and Pl., 1813; May
v. The State, 4 Texas Ct. App., 424), still we are not prepared to say that it is
a bad indictment. It charges the offense substantially in the language of the
statute, and ordinarily it is sufficient to do this. The weight of authority is
that it is not necessary to state the name of the first wife. (2 Whart. Prec.
Indict., 985, note c.) We are of the opinion that the exceptions to the indictment
were properly overruled.
The defense relied upon by the defendant was, that when he married the second wife
he believed that his first wife was no longer living. In support of this defense,
it was proved that the defendant resided in Travis county, and his first wife
resided in Bastrop county; that, a short time before he married the second wife,
he received a letter by mail, signed "John Crofford," and purporting to come
from Bastrop county, informing him of the death of his first wife. "John Crawford"
(the supposed writer of this letter) testified that he did not write it; that
he lived in Bastrop county, near defendant's first wife, and was well acquainted
with defendant; that his impression was, when he first saw the letter, that it
had been written by defendant's first wife, but he had told Jake Crawford, his
uncle, and a brother of defendant's second wife, that the handwriting of the
letter looked like that of his (John Crawford's) wife, or that of Mollie
Martindale. The witness Jake Crawford saw the letter, and being satisfied that
it was genuine, and that defendant's first wife was in fact dead, he consented
to his marriage with his sister. The second wife also testified that she saw
the letter, and, believing that it was all right, married the defendant. It was
also in proof that the defendant was illiterate-- could neither write nor read,
and was very simple.
*4 Under this state of facts, the court charged the jury as follows:
"A mistake by defendant as to the death of the first wife before the second
marriage, if such mistake did not arise from the want of proper care, will
excuse an act committed under such mistake. By proper care, which the defendant
must use, is meant such care as ordinary men would use to ascertain the truth
of a report of like importance upon which they may be required to act. If the
mistake is shown to have existed, and that it was not caused by want of such
proper care, the jury will acquit. If by such proper care defendant, from the
testimony, could have corrected the mistake, then the mistake, if it existed,
will avail nothing as a defense; but the jury may consider the belief by
defendant of his first wife's death, if such belief be shown, in mitigation
of punishment, should the defendant be convicted."
It is insisted by defendant's counsel that the foregoing charge is erroneous,
and, after a careful consideration of the question, we are of the opinion that
the latter clause of the same, which undertakes to instruct the jury as to the
meaning of the words "proper care," is erroneous, and should have been omitted
from the charge. We do not think that the court was called upon to explain
these words to the jury. They are not technical words having a fixed legal meaning
unknown to the unprofessional minds, but are plain, common, well understood
words, as easily comprehended as any used in the statute.
The Penal Code provides as follows:
"ART. 45. No mistake of law excuses one committing an offense; but if a person
laboring under a mistake as to a particular fact shall do an act which would
otherwise be criminal, he is guilty of no offense.
ART. 46. The mistake as to fact which will excuse, under the preceding article,
must be such that the person so acting under a mistake would have been excusable
had his conjecture as to the fact been correct; and it must also be such mistake
as does not arise from a want of proper care on the part of the person committing
the offense."
We think the learned judge should have given in charge to the jury, substantially,
the above articles, leaving the jury to determine from the evidence in the case
whether or not, under all the facts and circumstances of that particular case,
the mistake of the defendant, if he was mistaken, arose from a want of proper care
on his part. The question as to proper care, we think, depends upon the facts in
each particular case. No general rule can be prescribed in relation to it. What
would be proper care in one case might be gross negligence in another. What would
be proper care when considered with reference to one individual might not be when
applied to another. The learned judge, in the charge under discussion, defines
"proper care" to be such as ordinary men would use, etc. Why not also explain to
the jury what constitutes an "ordinary man?" Was the defendant an "ordinary man?"
Were the jury any more competent to determine this question without instructions
from the court than they were to determine the question as to what would constitute
proper care? We think the charge of the court was improper when applied to the
evidence in this case, in so far as it instructed the jury in the meaning of the
statutory words "proper care," and that it was calculated to injure the rights
of the defendant; and because of this error the judgment is reversed and the cause
is remanded.
*5 Reversed and remanded.
Tex.Ct.App. 1882.
TOM WATSON v. THE STATE.
13 Tex.App. 76, 1882 WL 9325 (Tex.Ct.App.)
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