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