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SUPREME COURT RECORDS PAGE
20
File contributed by Lisa Lach and
proofed/formated by Dena Stripling =========== Tex.Crim.App. 1893. BROWN v. STATE. 22 S.W. 596, 32 Tex.Crim. 119 Appeal from district court, BASTROP county;
Lafayette KIRK, Judge. Aleck BROWN was convicted of murder in the first
degree, and appeals. Affirmed. On a trial for murder, evidence that the husband
of deceased told defendant that he (defendant) had killed deceased, and
that defendant made no reply, was competent. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, the
affidavit alleged that the blood stains were from a squirrel which he had dressed
on the morning preceding the homicide. Defendant's daughter testified
that a squirrel had been given her on that morning, but that it was already
dressed, and this testimony was corroborated by the person who gave it to her.
Held, that the continuance was properly refused. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, and the
murder occurred in October, and the application was made in January
following, no sufficient diligence was shown to warrant the granting of a continuance. Where the allegations in a bill of exceptions
are contradicted by a statement of the court annexed to the bill, such
statement will be held to correctly present the matter in issue. Under Code Cr.Proc. art. 377, providing that any person, before the grand jury has been
impaneled, may challenge the array, or any person presented as grand juror,
and in no other way shall objections to the legality of the grand jury be
heard, and that any person confined in jail shall, on his request, be
brought into court to make such challenge, the provision that such person make
such request is mandatory; and, unless he does make such request, he cannot
afterwards object that he was not allowed an opportunity to challenge the
array. Defendant had, prior to the homicide, had
several quarrels with deceased, and on the night of the homicide was seen
standing at her gate, quarreling with her. Witness heard four blows struck, and
heard deceased scream after the first blow. Deceased's head was chopped to
pieces by an ax, and defendant, when arrested, had numerous blood
stains on his clothes, which he accounted for by saying that it was blood from a
squirrel which he had dressed; but this was controverted by his
daughter, who testified that the squirrel had been given to her already dressed.
Held sufficient to support a conviction of murder in the first degree. The evidence not raising the issue of
manslaughter, a charge thereon need not be given. Under Vernon's Ann.St. Const. art. 4, § 8, providing
that the governor may convene the legislature on extraordinary
occasions, and that his proclamation shall state specially the purpose
for which it is convened, and article 3, § 40, providing that the legislature
so convened shall not legislate on any other subjects than those
designated in the proclamation or presented to them by the governor, he need not
define subjects of legislation with precision; and a proclamation
authorizing the reapportionment of the judicial districts or the
entire state, by implication, authorizes all such legislation on
that subject as may be deemed necessary by the legislature. The caption of an act creating a new judicial
district need not state the different counties constituting such district,
nor that one of the counties composing it was transferred from some adjoining
district; the omission of such statements therein not being in violation
of Vernon's Ann.St. Const. art. 3, § 35, providing that no bill shall
contain more than one subject, which shall be expressed in its title. A verdict in civil, as well as in criminal,
cases, may be lawfully received and entered on Sunday. The following is the statement of facts. J. F. NASH, witness for the state, being duly
sworn, testified as follows: "I hold the position of marshal of
the town of BASTROP. I heard of the killing of Jane WILKINS, who was Oliver
WILKINS' wife, on the night of October 15, 1892. It occurred in the town and
county of BASTROP, in the state of Texas. It was some time about ten
o'clock when I heard of it. When I got there I found the body laying in the yard,
between the two doors on the south side of the house. It was lying on the
face, with the hands under it. There were two deep gashes in the head, and
one in the shoulder. There was an ax lying beside the body, and covered
with blood. There was blood on the ground around the body, and blood on the
wall of the house near the body, as high as five feet from the ground.
There was also a bloody ax lying on the ground, near the body. Ben HOLIDAY lives
in the southwest corner of the block on which the WILKINS house is
situated. Darcas GAGE lives on the northeast corner, and the WILKINS house is on
the northwest corner. Ann MORRISON and her husband, Frank MORRISON, live
across the street from Oliver WILKINS,--directly north. I think the street is
about fifteen feet wide, and MORRISON's house is some ten feet from the
street. Oliver WILKINS' house faces south. It is about sixty or seventy yards
from deceased's house to Ben HOLIDAY's. It is about seventy-five to one
hundred yards to John KERR's from Oliver WILKINS' house. There was some blood on a
top plank of WILKINS' yard fence, south of the gate, made by finger
prints. The finger prints, in blood, were about two inches below the top edge
of the plank, and the plank was broken. Aleck BROWN, the defendant, was
arrested some time in the summer before the killing occurred, for disturbing the
peace; and he pleaded guilty, and paid part of his fine, and worked
the rest out on the street. He was charged with disturbing the peace."
Cross- examined: "Oliver WILKINS, the husband of Jane WILKINS, the deceased, made
the complaint against Aleck BROWN for disturbing the peace. The body of Jane
WILKINS was found on the south side of the house, a few feet from the
door of the main room, nearest the door of the east room. This east room is an
old room, not used much. There was nothing in it. The feet were directly
under the eaves of the house. The head was directly south, as though
she had been standing with her back to the wall. I don't think it was over five
minutes after I heard of the killing until I got there. There were a good
many there when I got there. Aleck BROWN, John KERR, Ben HOLIDAY, and
Aunt Darcas GAGE were there when I got there. Aleck BROWN went after Oliver
WILKINS, the husband of the deceased. I think he went after him of his own
accord. When Oliver got there, I noticed him, and he seemed very much
excited. He went and got his gun, and went out in the garden. Aleck BROWN
lives 200 yards or more from WILKINS' house,--a little west of south of
WILKINS' house. The blocks are divided into squares of three-acre tracts.
Oliver WILKINS' house, where deceased was killed, is in the northwest corner
of one three-acre block, and Darcas GAGE's house is near the southeast corner
of the same block, and about 45 yards distant. Frank MORRISON's house,
where Ann MORRISON lives, is on the block immediately north of Oliver
WILKINS'; and Ben HOLIDAY's house is on the same block the WILKINS house is on,
and in the same southwest corner. Dally NUNN's house is on the same block
with Frank MORRISON's house, and in the northeast corner of same. KERR's
house is a little south of east from WILKINS' house, and between 75 and 100
yards distant. Aleck BROWN's house is a little west of south from Oliver
WILKINS' house, and about 200 yards distant. In going the most direct route
from Oliver WILKINS' house to defendant's, you would pass by the Ben HOLIDAY house.
In going from the Ben HOLIDAY house to the TAYLOR house, in the most
direct route, you would pass by Oliver WILKINS' house. Maria GAGE lives about
one-quarter of a mile from Ben HOLIDAY's house,--a little east of north.
These three-acre blocks are surrounded by streets. Ben HOLIDAY's house is
the only one you would necessarily pass in going from Oliver WILKINS'
to defendant's by the most direct route. Immediately north of defendant's
house is an inclosed three-acre block, with no houses or improvements
on it." The following is a correct plat of the grounds
and houses, and was introduced in evidence by the state: Darcas GAGE, for the state, being sworn,
testified as follows: "I am the mother of Jane WILKINS, the
deceased. The first time I knew Jane was dead, Ann MORRISON came to my house, and
called me, and said, 'I think one has killed or hurt Jane.' I went up there,
and found her lying on the ground, with her head cut open, and a bloody ax
lying near her. I screamed, and kept a- screaming. No one came, and I went
back, and put on my clothes. When I came back, John KERR came. His nephew,
Walter WHEELER, came with him, and shortly afterwards Aleck BROWN came, and he
stooped over Jane, and said: 'Yes; sure enough, she is dead.' Aleck said to
John KERR, 'Let's put her in the house.' KERR said, 'No.' Aleck walked off,
put his elbows on the fence, and leaned his head on his hands. I said, 'Who
will go after Oliver WILKINS?' and Aleck said 'I'll go.' Before
cotton-picking time, Aleck and Jane had trouble, fussing and quarreling. Aleck
was frequently at Oliver WILKINS', both in the day and at night, while
Oliver was absent, and no one at home." Cross-examined, witness
testified: "Ann MORRIS called me three times. I was asleep when Ann called me. When
Oliver came up, he said, 'There is my poor wife.' After Ann MORRISON called me,
I went right up, in my night linen. I put my hands on her head, and I
thought she said, 'Ma.' The body was still warm. I screamed, and kept
hollowing, 'Some one has killed my poor child! I went back, and dressed. I don't
think it took me fifteen minutes. I went just as quick as I could. Jane
WILKINS married Tobe COOK's father the first year of freedom. Aleck BROWN
was then only a baby." Re-examined by the state, Darcas GAGE testified:
"About four months before the death of deceased, the defendant and
deceased were at Oliver WILKINS' house, quarreling, and I went to them, and tried
to stop it, and defendant started off, and then stopped, and picked up a
big stick of wood, and threw at deceased, and hit the fence; and I
said,--'Aleck, I am going to make your pocket blue for that;' and he said, 'God damn
you! I will make your heart bleed in less than six months,' and then left.
Oliver WILINSs' family consisted of only himself and wife, and a little
five or six year old boy, and no one lived at his place except this
family." J. F. NASH recalled for the state testified: He
arrested the defendant on this charge on the night of the murder. Very
shortly after witness "got to WILKINS', being shortly after ten o'clock, he
had on no hat or coat or overshirt, and only a clean undershirt on the
upper portion of his body. The sleeves he had on when arrested had some spots
of blood on them at the time he was arrested. I went that night to defendant's
house, and found a white straw hat and a pair of pants of defendant's,
both of which had some spots of fresh blood on them; but I did not notice the
blood on the hat and pants of defendant until the next morning, but noticed
it on the shoes that night. The blood on the hat was a small spot on the
under side of the brim, and a large spot on the band, and there were large
spots on his shoes. The blood has faded away some, but I can see it on the hat
and pants and shoes now. The deceased had been struck three times in the
head, and once in the shoulder, with the ax, or some sharp, cutting
instrument. The wounds were all deep ones, and the head was cut to pieces,
and had to be tied up for burial." Cross-examined, the witness J. F.
NASH testified: "The blood is plainer now on the hat band than it is now on
the shoes and pants. When I first saw it, it was red, and looked like
fresh blood. I could not tell the difference between blood put on the
clothes at 10 A. M. and 7 P. M." John KERR, for the state, being sworn,
testified: "I live a little distance from the house of Jane WILKINS, the deceased.
About ten o'clock on the night Jane WILKINS was killed, I heard Aunt Darcas,
the mother of deceased, screaming. I ran up there. When I got there,
there was no one there but Jane's mother. The deceased was lying in a pool
of blood, dead, and a bloody ax was lying near her. Her head was cut all to
pieces with the ax, and I joined the pieces of her head together with my
hands, and there was nothing holding together but a piece of skin. Aleck
BROWN was the fourth man there. Darcas asked Aleck to go and get Oliver.
When Oliver got there, he walked around the yard, wringing his hands, and
said to defendant, 'Aleck, you have killed my wife,' and defendant made no
reply, and walked off. When Aleck BROWN came, he said, 'What's the matter?'
It was ten o'clock, by my clock, when I left home. When I got there, about
three minutes afterwards, I heard Darcas scream." Re-examined:
"The defendant had no hat on his head there that night, and he was the only person
there I saw without a hat on his head. I was there the whole time defendant
was there that night, and he never inquired anything about who committed the
murder, or who was suspected with it." Oliver WILKINS, being sworn for the state,
testified: "I am the husband of Jane WILKINS, the deceased. I last saw her alive
on October 15, 1892, about four o'clock in the afternoon. From sundown
until Aleck BROWN came after me to tell me of my wife's death, I was at the
white folks' gambling joint at the Home saloon. John MAJORS, Warren FLEMING,
and Joe SIMS, and others, were there. I went at once to go to the market to
borrow fifty cents, and at this time also went to the negro joint, and was gone
not over ten minutes. I went out only one other time, to go to the saloon, a
few feet from the white folks' joint, to get a drink of whisky, and
returned as soon as I got the drink." Cross-examined: "When Aleck
BROWN came in, he said, 'Oliver, somebody has killed your wife with your own ax.'
I think I got to the house in about fifteen minutes before Aleck got there.
When I got there, I said, 'Ain't it a pity my poor wife is here, dead?' I
got my gun, but there was no load in it, and it wouldn't shoot, anyhow, for
the breech pin was out. I kept my ax under the house, with the handle
lying straight with the side of the house. You could not see it without stooping
down." Re-examined: "I was not at home any time that night between sundown
and the time I was informed of the death of my wife. I gave Mary BROWN,
daughter of defendant, a squirrel on the day of the death of my wife. The
squirrel was dressed and cleaned on the day I gave it to her." George DAVIS, being sworn for the state,
testified: "I am sheriff of BASTROP county. I examined the hat and shoes and clothes
referred to by the witness J. F. NASH, and saw the spots of blood on them.
I examined the hat and shoes and pants the next morning after the murder. The
blood was fresh, red blood." H. N. BELL, being sworn for the state,
testified: "I examined the spots of blood on the hat and pants and shoes of the
defendant on the morning after the murder, and the blood was red and
fresh." Pearson HILL, being sworn for the state,
testified: "A few minutes before nine o'clock on the night Jane WILKINS was
killed, I met Aleck BROWN at Dally NUNN's corner, which is the northeast
corner of the block north of Oliver WILKINS' house, I said: 'Hello, old boy!
Where are you going?' He said, 'I am only walking around.' We talked a
short time about the supper, and about the folks passing up town,
when I told him I must be going, and bid him good night."
Cross-examined: "He had a white straw hat in his hand when I met him. I think he had on an
old pair of rickety-looking brown jeans pants. Where I met him was northeast
of Oliver WILKINS', and Aleck lives southwest from Oliver's. Aleck said
he believed he wanted to go up town. I told him not to go up there; the negroes
were fussing in that joint, and some one had to go to hell out of
that hole, and he had better keep away. I said: 'I must be going. I promised
my wife to be home early tonight. If I don't go, I will have a fuss on my
hands.' Aleck laughed, and said: 'Yes, that's so. We do sometimes get those
on our hands when we go home late.' When I bid him good night, Aleck
went west, and I went east. Immediately after I left defendant, and went
about one hundred yards, and crossed the railroad, the town clock struck
nine. When I first saw defendant, he was coming from between two seed
houses on the railroad reservation near Dally NUNN's corner." Dally NUNN, being sworn for the state,
testified: "I live northeast from Oliver WILKINS' house. On the night Jane WILKINS
was killed, I heard Pearson HILL and Aleck BROWN on the north side of my
house, talking. It was about nine o'clock. About an hour afterwards, I heard
Aunt Darcas scream." Ann SIMS, being sworn for the state, testified:
"In the spring of 1892 I went to Aunt Jane WILKINS' house. Aleck BROWN,
the defendant, was there, and she and Aleck were quarreling and fussing, and
Aleck called her a damned bitch. Aleck was cursing, and Jane was
hollowing. At another time after this, I was passing by WILKINS' house, and heard
defendant and deceased quarreling, and I heard the deceased say, 'I
will not do it,' and the defendant then said to the deceased that he
would kill her. He said, 'Nigger, I will show you. I will kill you.' This
was at night, and there was no one there except defendant and deceased. I
have heard Aleck BROWN curse Oliver WILKINS, too." Tishie KERR, having been sworn for the state,
testified: "About 9:30 o'clock on the night that Jane WILKINS was killed, I
heard four or five licks struck, and heard Jane scream. The licks sounded
like some one cutting wood. There wasn't five seconds between the licks. I
live at John KERR's. The licks sounded like they were at WILKINS' house,
and I recognized deceased's voice, in a scream, following immediately after
I heard the first blow, and heard the scream only one time. The voice was a
scream, as if in distress." Ben HOLIDAY, being sworn for the state,
testified: "I live south of Oliver WILKINS' about fifty or sixty yards. On the night
of October 15, 1892, I went to town at the first of dark, and came back
in about twenty minutes. When I came back, Aleck BROWN, the defendant,
was talking with Jane WILKINS, the deceased. He was standing on the
outside, and she was on the inside, of the yard fence of Oliver WILKINS'
place. My little boys, who had gone up to the TAYLOR House, got home about half
an hour, or may be three- quarters of an hour, after I got back from town.
I live on the most direct route from defendant's house to Oliver WILKINS',
and in going to the TAYLOR House, by the most direct route, from my place,
you would have to pass Oliver WILKINS' place. Maria GAGE lives about
one-quarter of a mile southeast from where I live; and, at the time of
the death of Jane WILKINS, Maria GAGE owed me a dollar, which she promised
to pay on that day, but did not pay on that day. My house is very near the
sidewalk, and on the night of the murder there was a lamp burning with a full
light until a few minutes before I heard Aunt Darcas screaming, when she
found her daughter dead. There is one door and one window of the house on
the west side of the room the lamp was in that night." Lloyd HOLIDAY, being sworn for the state,
testified: "About two or three hours after dark on the night of the murder of
Jane WILKINS, I and my brother left to go to the TAYLOR House, and on
our return came back by Jane WILKINS' house. The defendant, Aleck BROWN, was
there by the fence, talking to her. They said 'Yes' about something. I was
gone about half an hour. She was inside of the yard fence, and he was on the
outside. They were near the gate, on the west side of the house." Ann MORRISON, being sworn for the state,
testified: "I live on the opposite side of the street from Oliver WILKINS'. The
street is about thirteen yards wide. Oliver's house is about ten feet from the
street, on the south side, and mine, about the same distance, on the north
side. Oliver's house fronts south, and mine east. On the night of the
murder, at about eight o'clock, or after, I saw Aleck BROWN standing on the outside
of Oliver's yard fence of Oliver's house, at or near the northwest corner.
Jane WILKINS, the deceased, was standing on the inside, and they were
talking to each other. They were close together, and one each side of the fence.
They were quarreling, I don't know what about. They stood there
quarreling for several minutes. I heard him say something about money, and I heard
Jane say she was through with him, and would have nothing more to do with
him. She left, and immediately went in the house, and defendant
immediately opened the gate, and went in, and left the gate open. He followed
Jane immediately into the house. I heard some noise in Jane's house. It
sounded like some persons fussing and quarreling. This rumpus was kept up
several minutes, and I could not tell what was said by the persons fussing
and quarreling. I went out to my yard fence, and I could tell then that the
parties were outside, and south of the house, fussing and quarreling. I
heard Jane say, 'You're a liar.' Then I heard the defendant, Aleck BROWN,
say something in answer, but could not tell what it was. Then I
heard about four licks struck, and heard Jane scream after the first
lick was struck, but heard her voice no more after I heard the second blow.
After I heard the blows, and heard Jane scream, I saw some one run and jump
over the fence right south of the gate, and run down by Ben HOLIDAY's, in the
direction of his house. I heard a plank of the fence break as he got over
the fence. I have seen the defendant there frequently, both day and night,
while Oliver WILKINS was not at home. I heard her say, 'You're a liar.' Then
I heard him say something, and then she said, 'It's a lie,' and he said
something else, and she said again, 'You're a liar.' I went in the house
while they were standing at the fence. I stayed a little while, and when I came
out I could hear them in the house, talking, quarreling, and sounded like
they might be fighting, and I recognized it as Aleck's voice. They kept this
up until I went in the house again. I stayed a few minutes, and when I came
out they were out in the yard. I could hear them quarreling and talking
in the yard. I could not understand all the defendant said. He talked
low, but I could understand Jane. She called him a liar three times. I went
back in my house the third time. Not long after I went in, I heard the
blows struck, and the screaming of deceased; and then I heard some one run
across the yard, and saw him jump over the fence, and heard the fence break as he
got over. I could not tell how he was dressed. I then went in my house, and
stayed about half an hour, I think, and then I called Jane, but she did not
answer. I then went and called Aunt Darcas, her mother, and she came,
and found Jane dead, with her head split to pieces, with a bloody ax by her
side. The defendant and deceased had had quarrels before, and at one
time he bit one of her fingers nearly off. I have known the defendant, Aleck
BROWN, ever since he was a baby. (And the witness points him out, and
identifies him in open court, before the jury, and says she is positive he is
the man who was engaged in the conversation and quarreling with the
deceased on the night of the murder.) I heard the conversation, and
recognized his voice. This all occurred in the town and county of BASTROP, in
the state of Texas, on or about October 15, 1892." Jo SIMS, being sworn for the state, testified:
"I know where Oliver WILKINS was on the 15th of October, 1892, from six o'clock
P. M. until Aleck came to tell him of the death of his wife. He was in the
gambling house, a few feet in the rear of the Home saloon from six
o'clock P. M. on said day until I left the gambling house. I left the saloon
about 8 o'clock, and, when I returned, Oliver was gone to the scene of the
killing." Step SMITH, being sworn for the state,
testified: "Oliver came to the gambling joint near the Home saloon six P. M.
the night Jane was killed, and never left there at all during the time until
Aleck came after him, except once to go into the saloon, a few feet distant,
to get him a drink. He went to the saloon, got his drink, and
immediately returned to the gambling house, and remained there." Warren FLEMING, being sworn for the state,
testified: "Oliver WILKINS was at the White joint in the rear of the Home saloon
on the night of the killing of Jane WILKINS, from a little after six o'clock
until defendant came after him. He left only one time during that time to
go into the saloon, a few feet distant, to get him a drink, and was gone
five or ten minutes, --can't be certain,--and returned and remained there
until defendant came after him." John MAJORS, being sworn for the state,
testified: "Oliver WILKINS, on the night of the killing of Jane WILKINS, came to
the joint in the rear of the Home saloon, and stayed there from about six
o'clock P. M. until the defendant came and told him of the death of Jane
WILKINS. He was gone only once during said time, and then went into a
saloon, a few feet away, to get a drink, and immediately returned. Oliver was
betting, and I was dealing. Oliver was gone after the drink about five
minutes,--not over ten minutes, if that." Cross- examined: "I was busy
with my game. I did not pay much attention to the time, but it did not seem to me
more than ten minutes. He had money when he came back, and went to betting
on the game." Josh GAGE, being sworn for the state, testified:
"On the night Jane WILKINS was killed, my mother sent me down to Ben
HOLIDAY's to tell him, if he would come up to our house, she would pay him that
dollar she owed him. When I got nearly to Ben HOLIDAY's house, I saw defendant,
Aleck BROWN, runing towards me from the direction of Oliver WILKINS' house.
He ran up in reach of me, and I saw it was Aleck BROWN. He sorter circled
around a light made by a lamp in Ben HOLIDAY's house, as if trying to
shun the light, and went towards his home in a sort of trot. I got
scared, and ran back towards the Macedonian Church, where my mother was. I didn't
stop running until I got to the Macedonian Church. Aleck was running fast
until he passed me, and after passing me he ran, in a sort of a trot, off in
the direction of his home, near there. He was in the street between Ben
HOLIDAY's house and Jane WILKINS' house, coming from the direction of
Jane WILKINS' house, when I first saw him; and I got scared so badly when I
saw Aleck running that I immediately turned, and ran back to my mother,
without seeing Ben HOLIDAY. I am between fourteen and fifteen years of age,
and Maria GAGE is my mother. I have known the defendant, Aleck BROWN, all my
life, and am positively certain the man I saw running that night, as I
have stated, was the defendant, Aleck BROWN. (And the witness points,
and identifies the defendant, in court, as the man he saw running,
as testified by him.)" Cross-examined: "I have talked about seeing
Aleck that night with Uncle Oliver WILKINS. I didn't tell him what I was
going to say. I don't know why I wasn't asked to testify at the examining
trial. I know Aleck BROWN well, and one reason I got scared was because
his shirt was unbuttoned, and he ran up so close to me I could have put my
hand on him. As soon as I saw my mother, upon my return, I told her about my
seeing Aleck BROWN running, and about my getting scared, and failing to
deliver her message to Ben HOLIDAY." Maria GAGE, being sworn for the state,
testified: "I am the mother of Joseph GAGE, and he is fourteen years old. I sent him
to Ben HOLIDAY's on the night Jane was killed. Joseph left just after dark. He
was gone about one-quarter of an hour, and had been back about half an hour
when we heard Aunt Darcas screaming that Jane was killed. I was owing Ben
HOLIDAY one dollar, and had promised to send it to him on that day, but a
check for my money had been lost, so I could not get my money that day; and
I sent my son Josh to Ben HOLIDAY's that night to tell him I would get the
money, and pay him the next day. It was about nine o'clock, I suppose, when
I started him to Ben HOLIDAY's, and in about fifteen minutes he came
running back, and said that he did not see Ben HOLIDAY; that when he got to
Ben HOLIDAY's house he met Aleck BROWN, the defendant, running by HOLIDAY's
house; and that this frightened him so that he turned, and returned
in a run, without seeing Ben HOLIDAY. About one-half an hour or more after
Josh returned, and told me this, I heard Darcas GAGE screaming out that her
child had been murdered. I live near Col. JONES'. It is almost a mile from
Col. JONES' to the place where Jane was killed." Here the state closed. Caddy BROWN, being sworn for the defendant,
testified: "I am the wife of Aleck BROWN, the defendant. We went to bed about
half past eight on the night Jane was killed. We went to sleep. I heard
Aunt Darcas screaming, which waked me up. Aleck was asleep beside me in
the bed. I woke him up, and told him to put on his clothes, and run on ahead
of me. It was dark when he got up, and I don't know what clothes he put on.
We had supper late. It must have been eight o'clock or after. Aleck might
have been knocking about the lot while I was getting supper. I was busy, and
didn't pay any attention to him. When I got over to Oliver's, Aunt Darcas
threw her arms around me. She told Aleck to go after Oliver." Mary BROWN, being sworn for the defendant,
testified: "I am the daughter of Aleck BROWN. I was at Jane WILKINS' on October
15, 1892, and left there about seven o'clock. Uncle Oliver was out
hunting that morning, and gave us a squirrel. Papa cut it up, and salted it. I
took two squirrel tails home with me, and gave them to my little
brothers to play with. The last I saw of them, they were playing with them around
the house." Cross-examined: "The squirrel was dressed by Oliver WILKINS
before he gave it to me, and he gave it to me before noon of that day, and I
took it in my hand over from WILKINS' house to defendant's." George KIRK, being sworn for the state,
testified: "I took Aleck's sister to the supper that night." William MATTHEWS, being duly sworn for the
defendant, testified: "On the night Jane WILKINS was killed, between seven and
eight o clock, I was going south, down the railroad track; and at the
southeast corner of the block on which Oliver WILKINS, Ben HOLIDAY, and Darcas
GAGE live, I saw the defendant turn the corner of the fence, coming from the
direction of his residence, and going up north, in the direction of Dally
NUNN's corner." Dr. J. B. CAMPS being sworn for the defendant,
testified: "I walked from the gambling joint where Oliver WILKINS was on
the night Jane WILKINS was killed to Oliver's residence. I took six minutes
to walk there, and six minutes to walk back from there, at a pretty
rapid gait." Dyer MOORE and MCPHAUL & HOOD, for
appellant. R. L. HENRY, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of murder in the first
degree, and his punishment assessed at death. It is contended that the act
of the special session of the twenty-second legislature, organizing the
twenty-first judicial district, is unconstitutional, because the
governor did not, in his proclamation convening said legislature,
designate this particular matter in said proclamation as a "subject" for
legislation. Article 4, § 8, Const., provides that "the governor may, on
extraordinary occasion, convene the legislature at the seat of government, or at a
different place, in case that should be in the possession of the public enemy,
or in case of the prevalence of disease thereat. His proclamation
shall state specially the purpose for which the legislature is
convened." It is further provided by article 3, section 40, of said section:
"When the legislature shall be convened in special session, there shall be no
legislation upon any subject other than those designated by the proclamation
of the governor calling such session, or presented to them by the
governor, and no such session shall be of longer duration than 30 days."
The proclamation, among other things, convened the legislature "to
reapportion the state into congressional, senatorial, judicial, and
representative districts, and to provide for the election of officers
therein." The judicial districts mentioned in the proclamation were those
presided over by the district judges. A casual inspection of the proclamation
renders this certain. That the authority to reapportion or reorganize the
judicial districts of the entire state necessarily carried with it the
power to reapportion any given number of such districts is to our minds a
self-evident proposition. The office of the proclamation is to designate the
subjects, and not the manner or extent of legislation on such subjects.
"It was not the intention to require the governor to define with precision,
as to detail, the subjects of legislation, but only in a general way, by his
call, to confine the business to the particular subjects." That the
legislature may only enact legislation in part in relation to the subject
mentioned in the call does not render such legislation invalid, nor is it
necessary to the validity of such legislation that the whole subject-matter
should be acted on by the legislature. The call includes the entire
subject of reapportioning the judicial districts, and authorized "any and
all such legislation upon that subject as was deemed necessary by the
legislature. It was not necessary, nor would it have been proper, for the governor,
in his proclamation, to have suggested, in detail, the legislation
desired. It was for the legislature to determine what the legislation
should be." 2. We do not concur in contention of counsel
that the object and purpose of the act are not sufficiently stated in its
caption. It was not necessary to state in the caption the different counties
constituting the newly-constituted district, nor to state that
one of the counties composing such district was transferred from some
adjoining district. The caption is sufficient, and not violative of article 3, §
35, Const. FN1 Const. art. 3, § 35, provides that no bill
shall contain more than one subject, which shall be expressed in its title. 3. Defendant's motion to set aside and quash the
indictment because he was not allowed an opportunity for challenging the
array of jurors constituting the grand jury was not well taken. He made no
request to be brought from jail for that purpose. This was necessary. FN2 Code Crim. Proc. art. 377, provides that any
person, before the grand jury has been impaneled, may challenge the
array, or any person presented as grand juror, and in no other way shall
objections to the legality of the grand jury be heard, and that any person
confined in jail in the county shall, on his request, be brought into court to
make such challenge. 4. A continuance was sought in order to have
analyzed the blood found upon the defendant's clothing. There was no diligence
used to obtain such analysis, and no excuse given for such failure.
The murder occurred October 15th, and the application for continuance was
filed January 14th following. Again, the blood spots were found upon
defendant's hat, pants, shirt, and shoes, and the application alleges it came
from a squirrel he had dressed on the morning preceding the homicide at
night. The evidence adduced by himself, as well as by the state, shows that
he did not dress the squirrel. He introduced his daughter, who stated
that a squirrel had been given her on the morning in question, but
that it was dressed before she received it, and she carried it home after
it was given her, and the state introduced the witness who made the
present, and who also dressed it. The analysis could not have been material, under
the facts of this case. 5. When the allegations in a bill of exceptions
are contradicted by a statement of the court, annexed to the bill,
such statement will be held to correctly present the matter at issue. As thus
qualified, the bill disclosed that Oliver WILKINS, husband of deceased, said
to defendant, "Aleck, you have killed my wife." Defendant made no
reply, and walked off. The admission of this evidence was not error. 6. It was not error to receive and record the
verdict on Sunday. 7. The bill of exceptions recites the reception
of the verdict on Sunday, which was the 15th day of the month. The entry
of the judgment is shown by the transcript to have been made on the 14th.
Because of this variance it does not follow that the judgment was entered on
Sunday. If entered on Sunday, it was a fact easy of ascertainment and
proof, and should have been shown, if it was desired to set aside the
judgment on this ground. We are not authorized to presume, from the variance in
the dates stated, that such entry actually occurred on the 15th, or on
Sunday. Presumptions are indulged in aid and support of the judgment. The party
attacking the judgment must overcome such presumptions. The day set out in
record of judgment simply recited the beginning of the trial. 8. The court's omission to instruct the jury in
regard to the law of manslaughter was not error. The evidence does
not raise that issue. 9. The evidence supports the conviction. In
addition to previous quarrels and difficulties between the parties, and
threats of the defendant against deceased, the killing, and the manner of its
execution, were attended with such circumstances of enormity and cruelty as
afford sufficient evidence to warrant the conclusion that the killing was the
result of a sedate, deliberate mind, and formed design, and that it
was committed upon express malice. The judgment is affirmed. Judges all
present and concurring. ================ Tex.Crim.App. 1893. BROWN v. STATE. 22 S.W. 596, 32 Tex.Crim. 119 Appeal from district court, BASTROP county;
Lafayette KIRK, Judge. Aleck BROWN was convicted of murder in the first
degree, and appeals. Affirmed. On a trial for murder, evidence that the husband
of deceased told defendant that he (defendant) had killed deceased, and
that defendant made no reply, was competent. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, the
affidavit alleged that the blood stains were from a squirrel which he had dressed
on the morning preceding the homicide. Defendant's daughter testified
that a squirrel had been given her on that morning, but that it was already
dressed, and this testimony was corroborated by the person who gave it to her.
Held, that the continuance was properly refused. Where the defendant in a murder trial applied
for a continuance to have blood stains on his clothes analyzed, and the
murder occurred in October, and the application was made in January
following, no sufficient diligence was shown to warrant the granting of a
continuance. Where the allegations in a bill of exceptions
are contradicted by a statement of the court annexed to the bill, such
statement will be held to correctly present the matter in issue. Under Code Cr.Proc. art. 377, providing that any person, before the grand jury has been
impaneled, may challenge the array, or any person presented as grand juror,
and in no other way shall objections to the legality of the grand jury be
heard, and that any person confined in jail shall, on his request, be
brought into court to make such challenge, the provision that such person make
such request is mandatory; and, unless he does make such request, he cannot
afterwards object that he was not allowed an opportunity to challenge the
array. Defendant had, prior to the homicide, had
several quarrels with deceased, and on the night of the homicide was seen
standing at her gate, quarreling with her. Witness heard four blows struck, and
heard deceased scream after the first blow. Deceased's head was chopped to
pieces by an ax, and defendant, when arrested, had numerous blood
stains on his clothes, which he accounted for by saying that it was blood from a
squirrel which he had dressed; but this was controverted by his daughter,
who testified that the squirrel had been given to her already dressed.
Held sufficient to support a conviction of murder in the first degree. The evidence not raising the issue of
manslaughter, a charge thereon need not be given. Under Vernon's Ann.St. Const. art. 4, § 8,
providing that the governor may convene the legislature on extraordinary
occasions, and that his proclamation shall state specially the purpose
for which it is convened, and article 3, § 40, providing that the legislature
so convened shall not legislate on any other subjects than those
designated in the proclamation or presented to them by the governor, he need not
define subjects of legislation with precision; and a proclamation
authorizing the reapportionment of the judicial districts or the
entire state, by implication, authorizes all such legislation on
that subject as may be deemed necessary by the legislature. The caption of an act creating a new judicial
district need not state the different counties constituting such district,
nor that one of the counties composing it was transferred from some adjoining
district; the omission of such statements therein not being in violation
of Vernon's Ann.St. Const. art. 3, § 35, providing that no bill shall
contain more than one subject, which shall be expressed in its title. A verdict in civil, as well as in criminal,
cases, may be lawfully received and entered on Sunday. The following is the statement of facts. J. F. NASH, witness for the state, being duly
sworn, testified as follows: "I hold the position of marshal of
the town of BASTROP. I heard of the killing of Jane WILKINS, who was Oliver
WILKINS' wife, on the night of October 15, 1892. It occurred in the town and
county of BASTROP, in the state of Texas. It was some time about ten
o'clock when I heard of it. When I got there I found the body laying in the yard,
between the two doors on the south side of the house. It was lying on the
face, with the hands under it. There were two deep gashes in the head, and
one in the shoulder. There was an ax lying beside the body, and covered
with blood. There was blood on the ground around the body, and blood on the
wall of the house near the body, as high as five feet from the ground.
There was also a bloody ax lying on the ground, near the body. Ben HOLIDAY lives
in the southwest corner of the block on which the WILKINS house is
situated. Darcas GAGE lives on the northeast corner, and the WILKINS house is on
the northwest corner. Ann MORRISON and her husband, Frank MORRISON, live
across the street from Oliver WILKINS,--directly north. I think the street is
about fifteen feet wide, and MORRISON's house is some ten feet from the
street. Oliver WILKINS' house faces south. It is about sixty or seventy yards
from deceased's house to Ben HOLIDAY's. It is about seventy-five to one
hundred yards to John KERR's from Oliver WILKINS' house. There was some blood on a
top plank of WILKINS' yard fence, south of the gate, made by finger
prints. The finger prints, in blood, were about two inches below the top edge
of the plank, and the plank was broken. Aleck BROWN, the defendant, was
arrested some time in the summer before the killing occurred, for disturbing the
peace; and he pleaded guilty, and paid part of his fine, and worked
the rest out on the street. He was charged with disturbing the peace."
Cross- examined: "Oliver WILKINS, the husband of Jane WILKINS, the deceased, made
the complaint against Aleck BROWN for disturbing the peace. The body of Jane
WILKINS was found on the south side of the house, a few feet from the
door of the main room, nearest the door of the east room. This east room is an
old room, not used much. There was nothing in it. The feet were directly
under the eaves of the house. The head was directly south, as though
she had been standing with her back to the wall. I don't think it was over five
minutes after I heard of the killing until I got there. There were a good
many there when I got there. Aleck BROWN, John KERR, Ben HOLIDAY, and
Aunt Darcas GAGE were there when I got there. Aleck BROWN went after Oliver
WILKINS, the husband of the deceased. I think he went after him of his own
accord. When Oliver got there, I noticed him, and he seemed very much excited.
He went and got his gun, and went out in the garden. Aleck BROWN
lives 200 yards or more from WILKINS' house,--a little west of south of
WILKINS' house. The blocks are divided into squares of three-acre tracts.
Oliver WILKINS' house, where deceased was killed, is in the northwest corner
of one three-acre block, and Darcas GAGE's house is near the southeast corner
of the same block, and about 45 yards distant. Frank MORRISON's house,
where Ann MORRISON lives, is on the block immediately north of Oliver
WILKINS'; and Ben HOLIDAY's house is on the same block the WILKINS house is on,
and in the same southwest corner. Dally NUNN's house is on the same block
with Frank MORRISON's house, and in the northeast corner of same. KERR's
house is a little south of east from WILKINS' house, and between 75 and 100
yards distant. Aleck BROWN's house is a little west of south from Oliver
WILKINS' house, and about 200 yards distant. In going the most direct route
from Oliver WILKINS' house to defendant's, you would pass by the Ben HOLIDAY
house. In going from the Ben HOLIDAY house to the TAYLOR house, in the most
direct route, you would pass by Oliver WILKINS' house. Maria GAGE lives about
one-quarter of a mile from Ben HOLIDAY's house,--a little east of north.
These three-acre blocks are surrounded by streets. Ben HOLIDAY's house is
the only one you would necessarily pass in going from Oliver WILKINS'
to defendant's by the most direct route. Immediately north of defendant's
house is an inclosed three-acre block, with no houses or improvements
on it." The following is a correct plat of the grounds
and houses, and was introduced in evidence by the state: Darcas GAGE, for the state, being sworn,
testified as follows: "I am the mother of Jane WILKINS, the
deceased. The first time I knew Jane was dead, Ann MORRISON came to my house, and
called me, and said, 'I think one has killed or hurt Jane.' I went up there,
and found her lying on the ground, with her head cut open, and a bloody ax
lying near her. I screamed, and kept a- screaming. No one came, and I went
back, and put on my clothes. When I came back, John KERR came. His nephew,
Walter WHEELER, came with him, and shortly afterwards Aleck BROWN came, and he
stooped over Jane, and said: 'Yes; sure enough, she is dead.' Aleck said to
John KERR, 'Let's put her in the house.' KERR said, 'No.' Aleck walked off,
put his elbows on the fence, and leaned his head on his hands. I said, 'Who
will go after Oliver WILKINS?' and Aleck said 'I'll go.' Before
cotton-picking time, Aleck and Jane had trouble, fussing and quarreling. Aleck
was frequently at Oliver WILKINS', both in the day and at night, while
Oliver was absent, and no one at home." Cross-examined, witness
testified: "Ann MORRIS called me three times. I was asleep when Ann called me. When
Oliver came up, he said, 'There is my poor wife.' After Ann MORRISON called me,
I went right up, in my night linen. I put my hands on her head, and I
thought she said, 'Ma.' The body was still warm. I screamed, and kept
hollowing, 'Some one has killed my poor child! I went back, and dressed. I don't
think it took me fifteen minutes. I went just as quick as I could. Jane
WILKINS married Tobe COOK's father the first year of freedom. Aleck BROWN
was then only a baby." Re-examined by the state, Darcas GAGE testified:
"About four months before the death of deceased, the defendant and
deceased were at Oliver WILKINS' house, quarreling, and I went to them, and tried
to stop it, and defendant started off, and then stopped, and picked up a
big stick of wood, and threw at deceased, and hit the fence; and I
said,--'Aleck, I am going to make your pocket blue for that;' and he said, 'God damn
you! I will make your heart bleed in less than six months,' and then left.
Oliver WILKINS' family consisted of only himself and wife, and a little
five or six year old boy, and no one lived at his place except this
family." J. F. NASH recalled for the state testified: He
arrested the defendant on this charge on the night of the murder. Very
shortly after witness "got to WILKINS', being shortly after ten o'clock, he
had on no hat or coat or overshirt, and only a clean undershirt on the
upper portion of his body. The sleeves he had on when arrested had some spots
of blood on them at the time he was arrested. I went that night to
defendant's house, and found a white straw hat and a pair of pants of defendant's,
both of which had some spots of fresh blood on them; but I did not notice the
blood on the hat and pants of defendant until the next morning, but noticed
it on the shoes that night. The blood on the hat was a small spot on the
under side of the brim, and a large spot on the band, and there were large
spots on his shoes. The blood has faded away some, but I can see it on the hat
and pants and shoes now. The deceased had been struck three times in the
head, and once in the shoulder, with the ax, or some sharp, cutting
instrument. The wounds were all deep ones, and the head was cut to pieces,
and had to be tied up for burial." Cross-examined, the witness J. F.
NASH testified: "The blood is plainer now on the hat band than it is now on
the shoes and pants. When I first saw it, it was red, and looked like
fresh blood. I could not tell the difference between blood put on the
clothes at 10 A. M. and 7 P. M." John KERR, for the state, being sworn,
testified: "I live a little distance from the house of Jane WILKINS, the deceased.
About ten o'clock on the night Jane WILKINS was killed, I heard Aunt Darcas,
the mother of deceased, screaming. I ran up there. When I got there,
there was no one there but Jane's mother. The deceased was lying in a pool
of blood, dead, and a bloody ax was lying near her. Her head was cut all to
pieces with the ax, and I joined the pieces of her head together with my
hands, and there was nothing holding together but a piece of skin. Aleck
BROWN was the fourth man there. Darcas asked Aleck to go and get Oliver.
When Oliver got there, he walked around the yard, wringing his hands, and
said to defendant, 'Aleck, you have killed my wife,' and defendant made no
reply, and walked off. When Aleck BROWN came, he said, 'What's the matter?'
It was ten o'clock, by my clock, when I left home. When I got there, about
three minutes afterwards, I heard Darcas scream." Re-examined:
"The defendant had no hat on his head there that night, and he was the only person
there I saw without a hat on his head. I was there the whole time defendant
was there that night, and he never inquired anything about who committed the
murder, or who was suspected with it." Oliver WILKINS, being sworn for the state,
testified: "I am the husband of Jane WILKINS, the deceased. I last saw her alive
on October 15, 1892, about four o'clock in the afternoon. From sundown
until Aleck BROWN came after me to tell me of my wife's death, I was at the
white folks' gambling joint at the Home saloon. John MAJORS, Warren FLEMING,
and Joe SIMS, and others, were there. I went at once to go to the market to
borrow fifty cents, and at this time also went to the negro joint, and was gone
not over ten minutes. I went out only one other time, to go to the saloon, a
few feet from the white folks' joint, to get a drink of whisky, and
returned as soon as I got the drink." Cross-examined: "When Aleck
BROWN came in, he said, 'Oliver, somebody has killed your wife with your own ax.'
I think I got to the house in about fifteen minutes before Aleck got there.
When I got there, I said, 'Ain't it a pity my poor wife is here, dead?' I
got my gun, but there was no load in it, and it wouldn't shoot, anyhow, for
the breech pin was out. I kept my ax under the house, with the handle
lying straight with the side of the house. You could not see it without stooping
down." Re-examined: "I was not at home any time that night between sundown
and the time I was informed of the death of my wife. I gave Mary BROWN,
daughter of defendant, a squirrel on the day of the death of my wife. The
squirrel was dressed and cleaned on the day I gave it to her." George DAVIS, being sworn for the state,
testified: "I am sheriff of BASTROP county. I examined the hat and shoes and clothes
referred to by the witness J. F. NASH, and saw the spots of blood on them.
I examined the hat and shoes and pants the next morning after the murder. The
blood was fresh, red blood." H. N. BELL, being sworn for the state,
testified: "I examined the spots of blood on the hat and pants and shoes of the
defendant on the morning after the murder, and the blood was red and
fresh." Pearson HILL, being sworn for the state,
testified: "A few minutes before nine o'clock on the night Jane WILKINS was
killed, I met Aleck BROWN at Dally NUNN's corner, which is the northeast
corner of the block north of Oliver WILKINS' house, I said: 'Hello, old boy!
Where are you going?' He said, 'I am only walking around.' We talked a
short time about the supper, and about the folks passing up town,
when I told him I must be going, and bid him good night."
Cross-examined: "He had a white straw hat in his hand when I met him. I think he had on an
old pair of rickety-looking brown jeans pants. Where I met him was northeast
of Oliver WILKINS', and Aleck lives southwest from Oliver's. Aleck said
he believed he wanted to go up town. I told him not to go up there; the
negroes were fussing in that joint, and some one had to go to hell out of
that hole, and he had better keep away. I said: 'I must be going. I promised
my wife to be home early tonight. If I don't go, I will have a fuss on my
hands.' Aleck laughed, and said: 'Yes, that's so. We do sometimes get those
on our hands when we go home late.' When I bid him good night, Aleck
went west, and I went east. Immediately after I left defendant, and went
about one hundred yards, and crossed the railroad, the town clock struck
nine. When I first saw defendant, he was coming from between two seed
houses on the railroad reservation near Dally NUNN's corner." Dally NUNN, being sworn for the state,
testified: "I live northeast from Oliver WILKINS' house. On the night Jane WILKINS
was killed, I heard Pearson HILL and Aleck BROWN on the north side of my
house, talking. It was about nine o'clock. About an hour afterwards, I heard
Aunt Darcas scream." Ann SIMS, being sworn for the state, testified:
"In the spring of 1892 I went to Aunt Jane WILKINS' house. Aleck BROWN,
the defendant, was there, and she and Aleck were quarreling and fussing, and
Aleck called her a damned bitch. Aleck was cursing, and Jane was
hollowing. At another time after this, I was passing by WILKINS' house, and heard
defendant and deceased quarreling, and I heard the deceased say, 'I
will not do it,' and the defendant then said to the deceased that he
would kill her. He said, 'Nigger, I will show you. I will kill you.' This
was at night, and there was no one there except defendant and deceased. I
have heard Aleck BROWN curse Oliver WILKINS, too." Tishie KERR, having been sworn for the state,
testified: "About 9:30 o'clock on the night that Jane WILKINS was killed, I
heard four or five licks struck, and heard Jane scream. The licks sounded
like some one cutting wood. There wasn't five seconds between the licks. I
live at John KERR's. The licks sounded like they were at WILKINS' house,
and I recognized deceased's voice, in a scream, following immediately after
I heard the first blow, and heard the scream only one time. The voice was a
scream, as if in distress." Ben HOLIDAY, being sworn for the state,
testified: "I live south of Oliver WILKINS' about fifty or sixty yards. On the
night of October 15, 1892, I went to town at the first of dark, and came back
in about twenty minutes. When I came back, Aleck BROWN, the defendant,
was talking with Jane WILKINS, the deceased. He was standing on the
outside, and she was on the inside, of the yard fence of Oliver WILKINS'
place. My little boys, who had gone up to the TAYLOR House, got home about half
an hour, or may be three- quarters of an hour, after I got back from town.
I live on the most direct route from defendant's house to Oliver WILKINS',
and in going to the TAYLOR House, by the most direct route, from my place,
you would have to pass Oliver WILKINS' place. Maria GAGE lives about
one-quarter of a mile southeast from where I live; and, at the time of
the death of Jane WILKINS, Maria GAGE owed me a dollar, which she promised
to pay on that day, but did not pay on that day. My house is very near the
sidewalk, and on the night of the murder there was a lamp burning with a full
light until a few minutes before I heard Aunt Darcas screaming, when she
found her daughter dead. There is one door and one window of the house on
the west side of the room the lamp was in that night." Lloyd HOLIDAY, being sworn for the state,
testified: "About two or three hours after dark on the night of the murder of
Jane WILKINS, I and my brother left to go to the TAYLOR House, and on
our return came back by Jane WILKINS' house. The defendant, Aleck BROWN, was
there by the fence, talking to her. They said 'Yes' about something. I was
gone about half an hour. She was inside of the yard fence, and he was on the
outside. They were near the gate, on the west side of the house." Ann MORRISON, being sworn for the state,
testified: "I live on the opposite side of the street from Oliver WILKINS'. The
street is about thirteen yards wide. Oliver's house is about ten feet from the
street, on the south side, and mine, about the same distance, on the north
side. Oliver's house fronts south, and mine east. On the night of the
murder, at about eight o'clock, or after, I saw Aleck BROWN standing on the outside
of Oliver's yard fence of Oliver's house, at or near the northwest corner.
Jane WILKINS, the deceased, was standing on the inside, and they were talking
to each other. They were close together, and one each side of the fence.
They were quarreling, I don't know what about. They stood there
quarreling for several minutes. I heard him say something about money, and I heard
Jane say she was through with him, and would have nothing more to do with
him. She left, and immediately went in the house, and defendant
immediately opened the gate, and went in, and left the gate open. He followed
Jane immediately into the house. I heard some noise in Jane's house. It sounded
like some persons fussing and quarreling. This rumpus was kept up
several minutes, and I could not tell what was said by the persons fussing
and quarreling. I went out to my yard fence, and I could tell then that the
parties were outside, and south of the house, fussing and quarreling. I
heard Jane say, 'You're a liar.' Then I heard the defendant, Aleck BROWN,
say something in answer, but could not tell what it was. Then I
heard about four licks struck, and heard Jane scream after the first
lick was struck, but heard her voice no more after I heard the second blow.
After I heard the blows, and heard Jane scream, I saw some one run and jump
over the fence right south of the gate, and run down by Ben HOLIDAY's, in the
direction of his house. I heard a plank of the fence break as he got over
the fence. I have seen the defendant there frequently, both day and night,
while Oliver WILKINS was not at home. I heard her say, 'You're a liar.' Then
I heard him say something, and then she said, 'It's a lie,' and he said
something else, and she said again, 'You're a liar.' I went in the house
while they were standing at the fence. I stayed a little while, and when I came
out I could hear them in the house, talking, quarreling, and sounded like
they might be fighting, and I recognized it as Aleck's voice. They kept this
up until I went in the house again. I stayed a few minutes, and when I came
out they were out in the yard. I could hear them quarreling and talking
in the yard. I could not understand all the defendant said. He talked
low, but I could understand Jane. She called him a liar three times. I went
back in my house the third time. Not long after I went in, I heard the
blows struck, and the screaming of deceased; and then I heard some one run
across the yard, and saw him jump over the fence, and heard the fence break as he
got over. I could not tell how he was dressed. I then went in my house, and
stayed about half an hour, I think, and then I called Jane, but she did not
answer. I then went and called Aunt Darcas, her mother, and she came,
and found Jane dead, with her head split to pieces, with a bloody ax by her
side. The defendant and deceased had had quarrels before, and at one
time he bit one of her fingers nearly off. I have known the defendant, Aleck
BROWN, ever since he was a baby. (And the witness points him out, and
identifies him in open court, before the jury, and says she is positive he is
the man who was engaged in the conversation and quarreling with the
deceased on the night of the murder.) I heard the conversation, and
recognized his voice. This all occurred in the town and county of BASTROP, in
the state of Texas, on or about October 15, 1892." Jo SIMS, being sworn for the state, testified:
"I know where Oliver WILKINS was on the 15th of October, 1892, from six
o'clock P. M. until Aleck came to tell him of the death of his wife. He was in the
gambling house, a few feet in the rear of the Home saloon from six
o'clock P. M. on said day until I left the gambling house. I left the saloon
about 8 o'clock, and, when I returned, Oliver was gone to the scene of the
killing." Step SMITH, being sworn for the state,
testified: "Oliver came to the gambling joint near the Home saloon six P. M.
the night Jane was killed, and never left there at all during the time until
Aleck came after him, except once to go into the saloon, a few feet distant,
to get him a drink. He went to the saloon, got his drink, and
immediately returned to the gambling house, and remained there." Warren FLEMING, being sworn for the state,
testified: "Oliver WILKINS was at the WHITE joint in the rear of the Home saloon
on the night of the killing of Jane WILKINS, from a little after six o'clock
until defendant came after him. He left only one time during that time to
go into the saloon, a few feet distant, to get him a drink, and was gone
five or ten minutes, --can't be certain,--and returned and remained there
until defendant came after him." John MAJORS, being sworn for the state,
testified: "Oliver WILKINS, on the night of the killing of Jane WILKINS, came to
the joint in the rear of the Home saloon, and stayed there from about six
o'clock P. M. until the defendant came and told him of the death of Jane
WILKINS. He was gone only once during said time, and then went into a
saloon, a few feet away, to get a drink, and immediately returned. Oliver was
betting, and I was dealing. Oliver was gone after the drink about five
minutes,--not over ten minutes, if that." Cross- examined: "I was busy
with my game. I did not pay much attention to the time, but it did not seem to me
more than ten minutes. He had money when he came back, and went to betting
on the game." Josh GAGE, being sworn for the state, testified:
"On the night Jane WILKINS was killed, my mother sent me down to Ben
HOLIDAY's to tell him, if he would come up to our house, she would pay him that
dollar she owed him. When I got nearly to Ben HOLIDAY's house, I saw defendant,
Aleck BROWN, runing towards me from the direction of Oliver WILKINS' house.
He ran up in reach of me, and I saw it was Aleck BROWN. He sorter circled
around a light made by a lamp in Ben HOLIDAY's house, as if trying to
shun the light, and went towards his home in a sort of trot. I got
scared, and ran back towards the Macedonian Church, where my mother was. I didn't
stop running until I got to the Macedonian Church. Aleck was running fast
until he passed me, and after passing me he ran, in a sort of a trot, off in
the direction of his home, near there. He was in the street between Ben
HOLIDAY's house and Jane WILKINS' house, coming from the direction of
Jane WILKINS' house, when I first saw him; and I got scared so badly when I
saw Aleck running that I immediately turned, and ran back to my mother,
without seeing Ben HOLIDAY. I am between fourteen and fifteen years of age,
and Maria GAGE is my mother. I have known the defendant, Aleck BROWN, all my
life, and am positively certain the man I saw running that night, as I
have stated, was the defendant, Aleck BROWN. (And the witness points,
and identifies the defendant, in court, as the man he saw running,
as testified by him.)" Cross-examined: "I have talked about seeing
Aleck that night with Uncle Oliver WILKINS. I didn't tell him what I was
going to say. I don't know why I wasn't asked to testify at the examining
trial. I know Aleck BROWN well, and one reason I got scared was because
his shirt was unbuttoned, and he ran up so close to me I could have put my
hand on him. As soon as I saw my mother, upon my return, I told her about my
seeing Aleck BROWN running, and about my getting scared, and failing to
deliver her message to Ben HOLIDAY." Maria GAGE, being sworn for the state,
testified: "I am the mother of Joseph GAGE, and he is fourteen years old. I sent him
to Ben HOLIDAY's on the night Jane was killed. Joseph left just after dark. He
was gone about one-quarter of an hour, and had been back about half an hour
when we heard Aunt Darcas screaming that Jane was killed. I was owing Ben
HOLIDAY one dollar, and had promised to send it to him on that day, but a
check for my money had been lost, so I could not get my money that day; and
I sent my son Josh to Ben HOLIDAY's that night to tell him I would get the
money, and pay him the next day. It was about nine o'clock, I suppose, when
I started him to Ben HOLIDAY's, and in about fifteen minutes he came
running back, and said that he did not see Ben HOLIDAY; that when he got to
Ben HOLIDAY's house he met Aleck BROWN, the defendant, running by HOLIDAY's
house; and that this frightened him so that he turned, and returned
in a run, without seeing Ben HOLIDAY. About one-half an hour or more after
Josh returned, and told me this, I heard Darcas GAGE screaming out that her
child had been murdered. I live near Col. JONES'. It is almost a mile from
Col. JONES' to the place where Jane was killed." Here the state closed. Caddy BROWN, being sworn for the defendant,
testified: "I am the wife of Aleck BROWN, the defendant. We went to bed about
half past eight on the night Jane was killed. We went to sleep. I heard
Aunt Darcas screaming, which waked me up. Aleck was asleep beside me in
the bed. I woke him up, and told him to put on his clothes, and run on ahead
of me. It was dark when he got up, and I don't know what clothes he put on.
We had supper late. It must have been eight o'clock or after. Aleck might
have been knocking about the lot while I was getting supper. I was busy, and
didn't pay any attention to him. When I got over to Oliver's, Aunt Darcas
threw her arms around me. She told Aleck to go after Oliver." Mary BROWN, being sworn for the defendant,
testified: "I am the daughter of Aleck BROWN. I was at Jane WILKINS' on October
15, 1892, and left there about seven o'clock. Uncle Oliver was out
hunting that morning, and gave us a squirrel. Papa cut it up, and salted it. I
took two squirrel tails home with me, and gave them to my little
brothers to play with. The last I saw of them, they were playing with them around
the house." Cross-examined: "The squirrel was dressed by Oliver WILKINS
before he gave it to me, and he gave it to me before noon of that day, and I
took it in my hand over from WILKINS' house to defendant's." George KIRK, being sworn for the state,
testified: "I took Aleck's sister to the supper that night." William MATTHEWs, being duly sworn for the
defendant, testified: "On the night Jane WILKINS was killed, between seven and
eight o clock, I was going south, down the railroad track; and at the
southeast corner of the block on which Oliver WILKINS, Ben HOLIDAY, and Darcas
GAGE live, I saw the defendant turn the corner of the fence, coming from the
direction of his residence, and going up north, in the direction of Dally
NUNN's corner." Dr. J. B. CAMPS, being sworn for the defendant,
testified: "I walked from the gambling joint where Oliver WILKINS was on
the night Jane WILKINS was killed to Oliver's residence. I took six minutes
to walk there, and six minutes to walk back from there, at a pretty
rapid gait." Dyer MOORE and MCPHAUL & HOOD, for
appellant. R. L. HENRY, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of murder in the first
degree, and his punishment assessed at death. It is contended that the act
of the special session of the twenty-second legislature, organizing the
twenty-first judicial district, is unconstitutional, because the
governor did not, in his proclamation convening said legislature,
designate this particular matter in said proclamation as a "subject" for
legislation. Article 4, § 8, Const., provides that "the governor may, on
extraordinary occasion, convene the legislature at the seat of government, or at a
different place, in case that should be in the possession of the public enemy,
or in case of the prevalence of disease thereat. His proclamation
shall state specially the purpose for which the legislature is
convened." It is further provided by article 3, section 40, of said section:
"When the legislature shall be convened in special session, there shall be no
legislation upon any subject other than those designated by the proclamation
of the governor calling such session, or presented to them by the
governor, and no such session shall be of longer duration than 30 days."
The proclamation, among other things, convened the legislature "to reapportion
the state into congressional, senatorial, judicial, and
representative districts, and to provide for the election of officers
therein." The judicial districts mentioned in the proclamation were those
presided over by the district judges. A casual inspection of the proclamation
renders this certain. That the authority to reapportion or reorganize the
judicial districts of the entire state necessarily carried with it the
power to reapportion any given number of such districts is to our minds a
self-evident proposition. The office of the proclamation is to designate the
subjects, and not the manner or extent of legislation on such subjects.
"It was not the intention to require the governor to define with precision,
as to detail, the subjects of legislation, but only in a general way, by his
call, to confine the business to the particular subjects." That the
legislature may only enact legislation in part in relation to the subject
mentioned in the call does not render such legislation invalid, nor is it necessary
to the validity of such legislation that the whole subject-matter
should be acted on by the legislature. The call includes the entire
subject of reapportioning the judicial districts, and authorized "any and
all such legislation upon that subject as was deemed necessary by the
legislature. It was not necessary, nor would it have been proper, for the governor,
in his proclamation, to have suggested, in detail, the legislation
desired. It was for the legislature to determine what the legislation
should be." 2. We do not concur in contention of counsel
that the object and purpose of the act are not sufficiently stated in its
caption. It was not necessary to state in the caption the different counties constituting
the newly-constituted district, nor to state that
one of the counties composing such district was transferred from some
adjoining district. The caption is sufficient, and not violative of article 3, §
35, Const. FN1 Const. art. 3, § 35, provides that no bill
shall contain more than one subject, which shall be expressed in its title. 3. Defendant's motion to set aside and quash the
indictment because he was not allowed an opportunity for challenging the
array of jurors constituting the grand jury was not well taken. He made no
request to be brought from jail for that purpose. This was necessary. FN2 Code Crim. Proc. art. 377, provides that any
person, before the grand jury has been impaneled, may challenge the
array, or any person presented as grand juror, and in no other way shall
objections to the legality of the grand jury be heard, and that any person
confined in jail in the county shall, on his request, be brought into court to
make such challenge. 4. A continuance was sought in order to have
analyzed the blood found upon the defendant's clothing. There was no diligence
used to obtain such analysis, and no excuse given for such failure.
The murder occurred October 15th, and the application for continuance was
filed January 14th following. Again, the blood spots were found upon
defendant's hat, pants, shirt, and shoes, and the application alleges it came
from a squirrel he had dressed on the morning preceding the homicide at
night. The evidence adduced by himself, as well as by the state, shows that
he did not dress the squirrel. He introduced his daughter, who stated
that a squirrel had been given her on the morning in question, but
that it was dressed before she received it, and she carried it home after
it was given her, and the state introduced the witness who made the
present, and who also dressed it. The analysis could not have been material, under
the facts of this case. 5. When the allegations in a bill of exceptions
are contradicted by a statement of the court, annexed to the bill,
such statement will be held to correctly present the matter at issue. As thus
qualified, the bill disclosed that Oliver WILKINS, husband of deceased, said
to defendant, "Aleck, you have killed my wife." Defendant made no
reply, and walked off. The admission of this evidence was not error. 6. It was not error to receive and record the
verdict on Sunday. 7. The bill of exceptions recites the reception
of the verdict on Sunday, which was the 15th day of the month. The entry
of the judgment is shown by the transcript to have been made on the 14th.
Because of this variance it does not follow that the judgment was entered on
Sunday. If entered on Sunday, it was a fact easy of ascertainment and
proof, and should have been shown, if it was desired to set aside the
judgment on this ground. We are not authorized to presume, from the variance in
the dates stated, that such entry actually occurred on the 15th, or on
Sunday. Presumptions are indulged in aid and support of the judgment. The party
attacking the judgment must overcome such presumptions. The day set out in
record of judgment simply recited the beginning of the trial. 8. The court's omission to instruct the jury in
regard to the law of manslaughter was not error. The evidence does
not raise that issue. 9. The evidence supports the conviction. In
addition to previous quarrels and difficulties between the parties, and
threats of the defendant against deceased, the killing, and the manner of its
execution, were attended with such circumstances of enormity and cruelty as
afford sufficient evidence to warrant the conclusion that the killing was the
result of a sedate, deliberate mind, and formed design, and that it
was committed upon express malice. The judgment is affirmed. Judges all
present and concurring. ====================== Tex.Ct.App. 1879. FRANK WEBB v. THE STATE. 5 Tex.App. 596, 1879 WL 7410 (Tex.Ct.App.) A higher degree of insanity must be proved to
absolve one from the guilt of a criminal act than to discharge him from a
contract. In determining whether one was insane at the
time of committing a particular act, evidence of his state of mind both before
and after the act is admissible. The inquiry, however, is to be
directed to the particular act done, and to the time thereof. The opinion of a witness not an expert is
competent upon the question of the prisoner's sanity, where such opinion is formed
upon facts within the personal knowledge of the witness, and sworn to
by him before the jury. The action of the court on an application for a
continuance cannot be reversed on error, unless it clearly appears
from all the facts and circumstances that there has been an abuse of
discretion operating to the prejudice of the party. In prosecution for murder in which the defense
of insanity is made it is the duty of the court to instruct the jury that
every man is presumed to be sane, and possessed of sufficient reason to be
responsible for his crimes, until the contrary is proved to their
satisfaction; and that, to establish the defense of insanity, it must be clearly
proved that, at the time of the offense, the accused was laboring under such a
defect of reason as not to know the nature or quality of the act he was
doing, or that if he did know, he did not know he was doing wrong. *1 APPEAL from the District Court of Brazoria.
Tried below before the Hon. W. H. BURKHART. The indictment charged the murder of Charles R.
FOSTER, in Galveston County, on September 2, 1876. The trial was had in
Brazoria County, on a change of venue, and the appellant was convicted of murder
in the second degree, his punishment being assessed at forty years'
confinement in the penitentiary. The appellant interposed, to no purpose, the
defence of insanity. He was defended in the court below by E. J. WILSON and
J. T. MITCHELL, Esqs. Robert VANDERPOOL, the first witness for the
prosecution, testified that he is now, and was on September 2, 1876, a resident
of Galveston, Texas. Knew both appellant and deceased prior to the
killing, and has known the appellant since. On the day last named, in
Galveston County, Texas, he saw the appellant kill the deceased. On that day,
between nine and ten o'clock, A. M., witness saw appellant sitting on the
railroad track, near the stock-pens of deceased. He had his coat off, and
thrown across his left arm. The office and stock-pen of deceased were not
more than forty or fifty feet from where appellant was sitting. About this
time witness saw deceased come out of the office and walk down to the gate.
Appellant said to deceased, "I want to see you." Deceased responded,
"I'll see you when I get through with Paul." Appellant then said, "I've
waited long enough; you've done me dirt," and fired at deceased three times. At the first
shot deceased said, "Don't kill me, Frank." After the killing,
appellant said, in reply to the book-keeper NORMAN's question what he had
"done," "I gave him fourteen days to settle, and he didn't do it, and I killed
him." Appellant appeared to witness to be all right. He fired on deceased
three shots from a six-shooter pistol, which he pulled from under the coat he
held on his arm, and after he fired he put the pistol back in the side- pocket
of the coat, as it lay on his arm, and walked off. The pistol was a
large-sized Colt's cartridge six-shooter. Witness saw appellant on the
Thursday before the Saturday of the killing, at the Olive Branch Hotel, in
Galveston City, and saw him in the city of Galveston some days before Thursday,
and at no time noticed anything unusual or strange in his looks or
conduct. On cross-examination, the witness says that he
was on the inside of the pen, through which he could see plainly, as it was an
open, pine-plank fence. Jim GIDDINGS was at the gate, holding it open.
Appellant and deceased were outside. GIDDINGS, Paul BAYSE, and witness were
about the same distance from the parties. Mr. NORMAN and Mr. DAVIS were in
the office until the firing commenced, when they came out. Deceased came out
of the office to sell some cattle to Mr. BAYSE. Witness was in the employ
of the butchers, driving cattle from the pen. After the killing,
appellant very deliberately walked off in the direction of the city. *2 The State next introduced James GIDDINGS, who
testified that about one- half hour before the shooting, and while he was
lying under a car on the side track south of the pen, appellant came down
the track and sat down on it, holding his coat over his left arm.
Presently Mr. Paul BAYSE came to the pens to buy some stock, and witness called
deceased, who was then in the office, to come down. As deceased came,
appellant said to him, "I want to see you;" to which deceased replied,
"I will see you as soon as I wait on Paul." Appellant then said, "I have
waited long enough," and immediately pulled his pistol and commenced his fire. After
the first fire, deceased staggered up against the fence, and said,
"Frank, there is no use in that." On cross-examination, the witness states that
when the killing took place he was at the gate, and VANDERPOOL and BAYSE near
by. The next witness introduced by the State was
Paul BAYSE, who, being a Frenchman, and unable to speak the English
language, testified through a sworn interpreter. He testified that, on
September 2, 1876, he was at the stock-pens of deceased, in Galveston County,
when the killing occurred. Knew the parties; and when the killing took place was
about fifteen or twenty feet distant. Jim GIDDINGS was about thirty feet
off, and standing in the gate, VANDERPOOL about equidistant. When witness
was coming to the pens he saw GIDDINGS lying under a car on a side track,
on the gulf side of the pen. Appellant was near by, sitting on the track, with
his coat off. Witness counted only two shots fired by appellant. Cross-examined: Witness says that he heard
deceased say nothing. Heard appellant say something which he did not
understand, as he speaks only enough English to buy cattle. Joe DAVIS, witness for the State, testified that
when deceased was killed, he and NORMAN, the book-keeper, were in the
office together, and ran out on hearing the report of fire-arms. Witness stopped
at the foot of the steps, but NORMAN ran on to where the body lay, meeting
appellant walking from that direction. As the two passed, witness heard
NORMAN ask, "Frank, what have you done?" To which appellant replied,
"I told him I would give him a a chance." Appellant continued walking on
towards town, and witness saw him an hour afterwards, under arrest. Had known
appellant four or five years, and had been for five months boarding at the same
house with him, and had never seen anything in his manner or conversation
indicating insanity. On cross-examination, witness testifies that he
is neither an expert nor a physician. When appellant was brought back to
the place of the killing, in the presence of the body during the whole time
of the coroner's inquest, he displayed no emotion, but observed a seeming
indifference. A. P. NORMAN was the next introduced by the
prosecution. He testifies that he was in the office of deceased when he was
killed. Before the killing he saw appellant sitting on the railroad, as
described by other witnesses. When he heard the shots he ran out, and saw appellant
standing over the body of deceased, and as witness started towards them
appellant walked off in the direction from which witness was coming. As
witness ran by he asked, "Frank, what have you done?" to which witness heard
no reply. On the Saturday week before the killing, witness met appellant in
Galveston, and had a long talk with him about his business difficulty with
deceased. Appellant gave witness correctly the dates of the transactions. Witness
was the friend of both parties, and the book-keeper of deceased. *3 The misunderstanding spoken of grew out of
some cattle business, the appellant having left some with deceased for
sale. On the Tuesday before the killing, witness again met appellant in the
Olive Branch Hotel, in Galveston, and there expressed the wish that the
matter might be settled without a personal difficulty; to which the
appellant assented, and requested witness to see deceased about it, and
to that end. On cross-examination, witness said that
appellant told him that deceased had garnished his money, and that the garnishment
had to be withdrawn. Between this time and the killing, appellant did not
call on witness to know if a settlement had been made. In his conversation,
appellant was very bitter against the deceased, though he made no threats.
In none of his communications with appellant had witness
observed anything strange or unusual about his appearance. Appellant, for
some time previous to the killing, though not at the time, had been in the
employ of J. C. BORDEN, as salesman of stock, a position which required a
shrewd business man. At the time of the killing, appellant was doing
business on his own account, driving stock to the Galveston and Houston
markets. Witness reported to deceased the conversation with appellant in
regard to a settlement. William LOTT, for the State, testified that he
was, at the time of the killing, a clerk in the ammunition store of
LABADIE. On the morning of the shooting, between seven and eight o'clock,
appellant brought a Colt's cartridge six-shooter, of forty-five calibre,
into the store, and had witness to load it all round, for which he paid
the price, twenty-five cents. Appellant then put the pistol in the
breast-pocket of his coat, and, throwing his coat over his arm, walked off. It
is about one and a-half miles from LABADIE's store to the stock-pen where the
shooting was done. Witness noticed nothing unusual in the manner of
appellant. Here the State rested. The defendant introduced Amos HAYNES, his
cousin, who testified that he had known appellant from his childhood. The
grandfather and granduncle of appellant had both been insane, and both
committed suicide. The mother and a cousin of appellant were insane, and the father
of appellant was a very strange and a very eccentric man. Witness never
heard of other insanity in the family, and knows this as family tradition. J. D. WEBB, for the appellant, testified that he
is the brother of appellant. The grandfather and granduncle on
their father's side had both been insane, and both committed suicide. Their
mother was now, and had been insane for fifteen years. Their father was a
very strange and eccentric man. Before he died he had a suit of clothes made. He
had the coat, or robe, made to reach his heels, bound with wide red tape,
and his pants with wide red stripes, and desired to be buried in the suit,
with his boots on, using a plain box for a coffin. Don't know that he was
insane. When the appellant came home, about a month
before the killing, his demeanor, appearance, and conduct were so
changed that it caused apprehension that his mind had gone wrong. His
habits of life had previously been jovial and sociable, but he now had became
reticent, and would go to the woods alone, and remain so for hours. Would
talk to no one, nor speak of his business matters. On this trip he remained
at home but a short time before he went back to Houston, where he had
some cattle. The day before the killing, witness went to Galveston to sell some
cattle, getting there at night. Found appellant in bed, asleep, and it
was with difficulty that he could rouse him, and it was a minute before he
could be got to recognize witness and a friend who was with him. He looked
strange and wild, and very much altered since witness had seen him the last
time spoken of above. Appellant went down into town with witness and
friend that night, and separated from them about one o'clock. Did not
tell witness there was any business difficulty between him and deceased.
Witness knew of no difference between the two before the killing, and thought
they were friends. Witness left early next morning, and was shipping cattle
during the day at Johnson FOSTER's pens, where he heard of the killing. *4 Henry EVANS, for the defence, testified that
in 1862, when appellant was a boy about fourteen years of age, he (witness)
travelled with appellant and his father from Jackson County, some 150 miles,
to the city of Austin. On the road the father told witness that appellant
was subject to spells of strange ways, and that, as his mother could not
manage him, he was afraid to leave him at home. When his father left camp he
always asked witness to watch appelant.?? Witness observed no marked
evidences of insanity in appellant during this trip; he was wild and
frolicsome, like other boys. Col. WEBB, the father of appellant, was then
enrolling officer, and had five conscripts and guard in charge. Frank TAYLOR, for the defence, testified that he
was, on September 2, 1876, bar-keeper at the Fitzpatrick Hotel, where
appellant always boarded when in Galveston. He had been boarding there a long
time. He had been absent some little time before the killing, and came back
three or four days before the killing, looking very much changed. His eyes
were wild and bloodshot, and his face swollen, though he had not been
drinking to excess. Was drinking then less than witness had ever known him to
drink. He would sometimes sleep very profoundly, and the two nights before the
killing, witness heard him walking all through the night; and when asked
what was the matter, he would say nothing, and talked but very little. During
the day he would go into the sitting-room, sit down, pull his mustache, and
talk to himslf.?? His conduct was so strange that both witness and FITZPATRICK
remarked it, and declared that something was the matter with him. On the day before the killing, deceased rode up
before the bar-room and asked witness if appellant was in; and witness
called appellant, who went out. The two shook hands friendly, and had a
long talk, and when deceased rode off they shook hands again, and witness
heard deceased ask appellant to come to see him. Appellant then came in, and
slapped witness on the shoulder and said, "Let us take a drink, I have
settled my business with Charles FOSTER," and seemed to be very happy over
it. After awhile he came back and asked me to take another drink, and those two
drinks were the only ones I saw him take after he had got back to the city. After the second drink, appellant went back to
the same place in the sitting- room where he had passed the two
previous days in such a strange manner, and seemed to relapse into the same
moody way, having nothing to say to any one. That night he slept but little, but
walked; and next morning he asked witness for his coat, which was behind the
counter. He then went out, and returned sometime later and asked for his
pistol, which witness had taken out of the coat pocket and put under the
counter. Witness told him he would be arrested for carrying concealed
weapons, and asked him what he was going to do with it. He responded that he was a
policeman, and was going on duty, and that he had lost his badge. He was
looking very wild and strange, and not drinking at all. He went out in a great
hurry, and witness saw no more of him until he came back in the custody of
James CAHILL, and took a drink; when CAHILL told witness what had
happened, appellant appeared careless and indifferent, and looked just as he
did before he left. Witness has never testified before, though he has been
here three times. This is the first time this case was ever called for trial
during the attendance of witness. Was not here at the mistrial. Was
attached three days ago by the sheriff, and brought here. Does not recollect
the date of the killing. It was in September, 1876. Does not recollect that
the appellant was in Galveston in August, 1876. Doesn't know the date
of the killing,--it may have been on the 26th. Witness's employment with
FITZPATRICK ceased on September 1st, but witness did not go out of the
house. Went back into his employment on the 2d. *5 A hypothetical case was then put to Dr. O. H.
SEEDS, from the standpoint of the defence, and the doctor testified that it
indicated the acts of an insane man. Upon cross-examination, the State stated a
hypothetical case from its standpoint, and the doctor testified that upon
such a view they were the acts of a sane man. Dr. TURNER's testimony was substantially the
same. Dr. COCHRAN, upon a hypothetical case stated by
the prosecution, stated that the acts would be those of a sane man, and as
presented by the defence, said they indicated insanity; but he could not
understand appellant's walking a mile or so, although it might be explained or
called "method in madness." No brief for the appellant has reached the
reporters. Thomas BALL, Assistant Attorney-General, for the
State. In this cause two questions present themselves. 1. Was it error to overrule appellant's motion
for a continuance? It is thought not. The grounds set out in the
application for the various witnesses' evidence were to prove appellant's
curious, weird, wild, and vacant looks, in order to show insanity, etc. In
order to get a continuance on this ground, the court must be satisfied of
"the materiality of the evidence." The court below, in the exercise
of judicial discretion, held the contemplated evidence worthless, and refused the
continuance. The statement of facts shows, beyond question, that there were
many witnesses before the court on the final trial of appellant, put there
by him to testify as to his mental condition on and about the time of the
murder. So it will appear that no wrong was done him for the want of other
witnesses on the question of pretended insanity, and he should not be heard
to complain. 2. In the motion for new trial, the main
question raised is that the jury acted improperly during the trial (not after the
cause was submitted to the jury). During the trial the jury did not act so
as to make an exception to the ordinary rule, and bring their action in
this trial within the exception laid down in EARLY v. The State but will be controlled by the general rule as given in DAVIS
v. The State; The State v. FORNEY; The People v. MONTGOMERY; The State v.
MORPHY; ELLIS v. PONTON. As to the wild, weird looks of appellant,
indicating insanity, as set out in the last motion, it is submitted that if every word
relating to the insane condition of defendant, as stated in the motions
for continuance and new trial, were true and had been proven on the
trial, there would have been no difference in the verdict, because none of the
statements indicate insanity, but only extraordinary actions, as forerunners
of his contemplated deed. HALBERT v. The State. *6 The transcript herein presents the only case
of record (if appellant was in fact insane) where an insane person admits
it. All the records of all the asylums in the world fail to show where an
insane inmate has admitted his insanity. The reverse, though, is true with
lunatics,--all are crazy except the lunatic. And it is submitted to the court
that this peculiarity is a matter of history as to lunatics, and that the
bare fact of a person asserting and swearing to his own insanity is
sufficient ground for any court to overrule such sworn statement for a
continuance, because such assertion at once judicially informs the court
that the affiant is sane. But in this cause appellant had a fair hearing on
insanity. All was submitted to the jury by the charge of the court, after much
evidence was heard as to the pretended mental aberration; so, it seems, no
wrong could have resulted from being forced into the trial. It is presumed that the motion to quash was
waived and not acted on, as the record is silent. There does not appear any
error in the charge of the court. WHITE, J. It is a wise as well as most humane provision of
our law that "no act done in a state of insanity can be punished as an
offence." With regard to murder, it is specially declared a part of the definition of the crime that it is the act of
"a person with a sound memory and discretion." On the other hand, it is equally as well
settled, both in law and in reason, that every man is presumed to be of sane mind
until the contrary is shown. "In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be
shown than would be sufficient to discharge him from the obligations
of his contracts." "In all such cases the jury are to be told that every man is presumed to be sane, and to possess a sufficient
degree of reason to be responsible for his crimes, until the contrary
is proved to their satisfaction; and that, to establish a defence
on the ground of insanity, it must be clearly proved that, at the time of
committing the act, the party accused was laboring under such a defect of
reason, from disease of the mind, as not to know the nature or quality of
the act he was doing, or, if he did know it, that he did not know he was
doing wrong. The mode of putting the latter part of the question to the jury on
these occasions has generally been, whether the accused, at the time of doing
the act, knew the difference between right and wrong; which mode, though
rarely, if ever, leading to any mistake with the jury, is not deemed so accurate
when put generally and in the abstract as when put with reference to the
party's knowledge of right and wrong in respect to the very act with which
he is charged." Mr. BISHOP says: "The inquiry is directed
to the particular thing done, and not to any other; because, as we have seen, a
man may be responsible for some things while not for others. Of course,
also, it has reference to the time of the transaction, not to any other time.
The reader, however, should distinguish these questions from questions
concerning the proof; for, to ascertain the state of the mind at a particular
period, we may inquire into its condition both before and after in relation
to a particular subject, its condition as to other subjects." *7 Evidence of the state of the mind of the
party both before and after the act done is admissible in determining the
question of sanity. Another rule, equally well settled, seems to be
that "if derangement or imbecility be proved or admitted at any
particular period, it is presumed to continue until disproved, unless the derangement
was accidental, being caused by the violence of a disease. But this
presumption is rather matter of fact than law, or, at most, partly of law and
partly of fact." Whatever may have been the rules of evidence
heretofore with regard to the character of proof admissible on the subject of
insanity, the doctrine that non-professional witnesses should be allowed to
state their opinion as to the sanity of the party, derived from their
acquaintance with and observation of his conduct, appearance, and
actions, has become too well settled to admit of doubt or controversy at this
time. HOLCOMB v. The State; MCCLACKEY v. The State, decided by this court at
the Tyler term, 1878. We are aware that in GEHRKE v. The State, our
Supreme Court, following in the wake of the decisions in Massachusetts and
New Hampshire, held otherwise. The subject has, however, of late
years been more thoroughly examined and discussed; and in New
Hampshire particularly, in the recent case of HARDY v. MERRILL, FOSTER, C. J.,
of the Circuit Court, in a most elaborate opinion, concurred in by the
Supreme Court, reviews the previous decisions and overrules them, which
places that court in full accord with the English and American doctrine as
it now generally obtains on that subject. The case of GEHRKE v. The State has been practically, as we have seen, and will
be hereafter considered as overruled on this point. Now, from what has been stated above, it
necessarily follows that there are no definite limits within which the evidence can
be restricted on an inquiry of this sort. Nor is the investigation one in
which the judge could well say that additional evidence would be but cumulative
of like testimony already adduced; for the greater the number of witnesses
who would depose to the opinion that a party was insane, the more likely
would the jury, we apprehend, be inclined so to believe and become
satisfied of the fact. In the case at bar, the defence was insanity. An
application for continuance was made on account of the absence of six of
defendant's witnesses, all of whom had been duly attached, and were under bond
to appear and testify. The facts to which they would depose are fully set
out in the application, and it contained the opinions of those witnesses as
to the insanity of the defendant, gathered from their associations with
him, and their observations of his conduct, language, and appearance for
some weeks prior and down to and including the very day of the killing, both
before and after the act. *8 This application was, moreover, in strict
compliance with the requirements of the statute. No reason is given
by the court for its action in overruling it, and we are left to infer that
it was upon the ground that the evidence was deemed immaterial or
inadmissible. We do not think so; on the contrary, it appears to us both material,
admissible, and pertinent to the issue to be decided; and its materiality
becomes much more apparent when we consider it in connection with the evidence
actually adduced for the defendant on the trial. How far these witnesses
can be relied upon for the truth, or how far their testimony might have
influenced the action of the jury in finding their verdict, it is impossible
for us to say. As presented to us, the application for continuance was
sufficient, and should have been granted. In reversing the case, we deem it necessary to
refer to certain acts of misconduct (complained of) on the part of the
jury and the officers having them in charge, which, to say the least of it,
does not comport with our ideas of the serious solemnity of the duty of
those having in charge the life of a fellow-being. The jury were allowed to
have and drink several bottles of whiskey, some of which were conveyed
to them by the officer having them in charge. Had any one of them
become intoxicated to such an extent as to render it probable his verdict was
influenced thereby, it would have been the duty of the court below to have
granted a new trial. Again, one of the jurors was permitted to make,
and did make, a horse-trade with another party, who was not upon the jury.
It is true, the officer says it was done in his hearing and presence, and no
injury, perhaps, was done the defendant under the circumstances. Still,
such things are calculated to throw suspicion upon a verdict; and a verdict in
a case involving the momentous issues of life and death should be
above suspicion, and command entire confidence. Because the court below erred in overruling
defendant's application for a continuance in the first instance, and
afterwards erred in refusing a new trial, the judgment is reversed and the cause
remanded. Reversed and remanded. |
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