text:
    BELCHER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Criminal Law (§ 564) — 'Venue—Promt.
    Venue may be proved by other than positive testimony, and need not be established beyond a reasonable doubt; it being sufficient if from the evidence the Jury may reasonably conclude that .'the offense was committed in the county alleged.
    [Ed. Note. — For other cases, see Criminal Law:, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.]
    2. CRIMINAL Daw (§ 1144) — Appeal—'Venue —Proof— Presumptions.
    Laws 25th Leg. c. 12, amending Code Cr. Proc. 1895, art. 904, provides that the appellate court shall presume that the venue has been proved in the trial court, unless it was made an issue there, and it affirmatively appears that it was not proved by a bill of exceptions properly signed and allowed by the judge, or proven by bystanders, and incorporated in the transcript. The question of venue was not contested at the trial, nor until motion for a new trial, and the court, in approving appellant’s bill of exceptions overruling the motion on that ground, stated that the venue was shown circumstantially in numerous ways throughout the record, more particularly by certain evidence specified as to the place where the hilling occurred and the body found. Held, that the Court of Criminal Appeals was required to presume that the venue was sufficiently proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766; Dec. Dig. § 1144.]
    3. Criminal Law (§ 414) — Evidence—Identity.
    Where two witnesses testified that they passed decedent’s home on the morning of the day on which the hilling was alleged to have occurred, and saw defendant and decedent, and heard loud talking and swearing between them, and one of the witnesses testified that he heard defendant say to decedent, “I guess, by G-, you are about the last G — — man that had it,” and recognized his voice, the evidence was admissible, though the other witness was not familiar with defendant’s voice, and could not testify that he was the one who made the statement testified to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 936; Dec. Dig. .§ 414.]
    4. Criminal Law (§ 656) — 1Trial—Sugges-tion by Court.
    Certain testimony having been given in the absence of the jury in order to determine its admissibility, and the court having ruled that it was, the jury were returned, and during the examination the court suggested' to the district attorney that, in order to connect it, “You might ask him the questions T did while the jury was out.]’ Held, that such suggestion was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. § 656.]
    5. Criminal Law (§ 338) — Evidence—“Relevancy” — “Pertinent Hypothesis.”
    “Relevancy” as applied to evidence means that which conduces to prove a pertinent hypothesis, a pertinent hypothesis being one which, if sustained, will logically influence the issue, so that it is relevant to put in evidence any circumstance which tends to make a proposition at issue either more or less probable, and whatever is a condition either of the existence or nonexistence of a relevant hypothesis may be shown; but no circumstance is relevant which does not make more or less probable the proposition at issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338

    For other definitions, see Words and Phrases, vol. 7, p. 6062; vol. 6, p. 5368.]
    6. Criminal Law (§ 517) — Evidence—Confessions.
    When decedent’s body was found, decomposition was well advanced, and from an examination before burial there was doubt as to his identity, and no one was able to state exactly how he was killed; some thinking he was shot with a shotgun in the breast, some that he was shot in the throat, and others that he was shot in the back of the neck or head. There was also no agreement as to the kind of weapon used. After accused was arrested, he made an oral statement to the sheriff that he shot deceased with a shotgun, a little to the rear of the right of the head, with small shot, and also that decedent had had one of his teeth pulled, and that the tooth next to that pulled had a decayed place in the center of it. The body was then exhumed, and it was found that the confession of accused was true. Held that, such confession having been voluntarily made, it was properly admitted to establish the identity of deceased, and to show how and by what means he was killed, under Code Cr. Proc. 1911, art. 810, providing that voluntary oral confessions of accused while in custody are admissible, when in connection therewith he makes statements of fact that are found to be true, and which conduce to establish his guilt, etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1146-1156; Dec. Dig. § 517.]
    7.Criminal Law (§ 736) — Confessions—Admissibility — Question for Court or Jury. ' Whether an oral confession or statement by accused while in custody is admissible is a question of law for the court;, it being only when the voluntary character of the confession is contested or the making thereof denied that the court is required to submit such issue to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1219-1221, 1701, 1702, 1705, 1716; Dec. Dig. § 736.]
    8.Criminal Law (§ 459) — Evidence—Non-expert Opinion.
    Persons not experts were properly permitted to testify that on the next day and for a few days after the killing they went to the home of deceased, and found blood, at various places on the ground, the side of the house, and floor thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1048-1050; Dec. Dig. § 459.]
    9.Criminal Law (§ 781) — Trial—Confessions — Exculpatory Statements.
    Where the state did not rely on an entire confession of accused to prove guilt, but exculpatory statements contained therein were proved by defendant, the court was not required to charge that such statements must be regarded as true, unless the state proved the falsity thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 186<t-1871, 1898; Dec. Dig. § 781.]
    10.Homicide (§ 300) — Evidence—Threats.
    Evidence that just prior to the killing decedent said to defendant, “I will fix you right now,” and grabbed for an axe, whereupon defendant immediately killed him, did not require a charge on threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    11.Homicide (§ 300) — Self-Defense—Evidence — Instructions. >

    Where, in a prosecution for patricide, accused proved that decedent was a violent and dangerous man, that he had had fights with various persons, and had killed one man, that he had a general reputation as a dangerous and violent person, and that defendant was not his equal in weight or physicial strength, an instruction on self-defense was not erroneous as hypothesizing defendant’s knowledge of the character and disposition of deceased and their relative strength as a condition of his right to rely on self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    ' Percy Belcher was convicted of patricide, and he appeals.
    Affirmed.
    Fires & Diggs, of Childress, and Decker & Clarke and J. C. Marshall, all of Quanah, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was indicted for the murder of his father, W. R. Belcher, in Hardeman county on or about May 31, 1912. He was convicted of murder in the second degree, and his punishment fixed at 60 years’ confinement in the penitentiary.

On June 7, 1912, the dead body of a man was found in a secluded place in Norton’s pasture in said county, which was about 13 miles distant from said W. R. Belcher’s home, where he had lived for some time prior to May 31, 1912, and where he was seen alive on that date. Whether this dead body was that of W. R. Belcher or not was one of the main contested questions in the case; the state contending that it was, while the appellant contended that it was not. Much testimony was introduced by both sides on this issue.

Appellant contends that the judgment must be reversed, because the evidence does not show that the killing occurred in Hardeman county. This question was first raised by appellant in his motion for a new trial. The record shows that the issue of venue was not fought out nor contested on the trial of the case. It merely shows .that the indictment charged the killing to have been in Hardeman county, and that the appellant pleaded not guilty to the indictment

As we correctly said in the recent case of Reynolds v. State, 160 S. W. 362, from Shackelford county:' “It is the settled law of this state that it is not essential to prove venue beyond a reasonable doubt; that the doctrine of reasonable doubt does not apply to the issue of venue. Barrara v. State, 42 Tex. 260; McReynolds v. State, 4 Tex. App. 327; Deggs v. State, 7 Tex. App. 369; Achterberg v. State, 8 Tex. App. 463; McGill v. State, 25 Tex. App. 499 [8 S. W. 661]; Cox v. State, 28 Tex. App. 92 [12 S. W. 493]; Abrigo v. State, 29 Tex. App. 143 [15 S. W. 408]. It is unnecessary to cite any later decisions. Venue may be proved by other than positive testimony, if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged it is sufficient. Hoffman v. State, 12 Tex. App. 406; Bowman v. State, 38 Tex. Cr. R. 14 [40 S. W. 796, 41 S. W. 635]. It may be effectively proved by circumstantial as well as by direct evidence. McGill v. State, supra; Cox v. State, supra; McGlasson v. State, 38 Tex. Cr. R. 351 [43 S. W. 93]; Kugadt v. State, 38 Tex. Cr. R. 681 [44 S. W. 989]; Nance v. State, 17 Tex. App. 385.”

Prior to the act of 1897, p. 11, now article 938, C. C. P., this court had uniformly held that the record on appeal must affirmatively show venue, whether contested in the lower court or not. In making out statement of facts theretofore, when venue was not an issue, frequently the testimony on that subject was inadvertently or otherwise omitted, and the statements of facts were prepared more particularly with reference to the contested issues fought out in the trial court. The Legislature, therefore, for the express purpose, among others, of preventing reversals, because the record on appeal did not affirmatively show the venue, passed said act of 1897, whereby it is provided that in all cases this court shall presume that the venue was proven in the court below, unless that was made an issue in the court below, and it affirmatively appears that venue was not proven by a bill of exceptions properly signed and allowed by the judge of the court below, or proven up by bystanders, and incorporated in the transcript as required by law. Very •soon after the enactment of this law the question came up in McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93. In that case the question was attempted to be raised by a special charge requested by defendant to find him not guilty on the ground that no venue had been proved. The court refused that charge, and he took a bill of exceptions thereto. On this point the court in that case said: “The question presented as to this bill of exceptions is, Does it sufficiently comply with the amendment to article 904 adopted by the Twenty-Fifth Legislature? See Laws 25th Leg. p. 11. The act in effect provides that, as to the venue in all eases, the court shall presume that it was proved in the court below, unless it was made an issue there, and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge, or proved up by bystanders, as is now provided by law, and incorporated in the transcript, as required by law. It occurs to us that this statute requires this court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the ease was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law.” Again, in Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419, the appellant in that case sought to raise the question by his motion for new trial, and by affidavits appended thereto, showing that venue was not proved in the court below. This court in that case said: “Appellant, in his motion for new trial, and by affidavits appended thereto, raises the question of venue; that is, he adopts this mode of insisting that the venue was not proven in the court below. Under article 904, as amended by the Twenty-Fifth Legislature (see Acts 1897, page 11), it is provided that the failure to prove venue in the trial court can only be raised by a bill of exceptions properly signed and allowed by the judge or proven up by bystanders, as is now provided by law, and incorporated in the transcript, as required by law. This mode of procedure was not pursued by appellant, and consequently we cannot consider the matter as presented in the motion for new trial.” See, also, Barker v. State, 47 S. W. 980; Washington v. State, 77 S. W. 810; Brantly v. State, 42 Tex. Cr. R. 296, 59 S. W. 892; Munger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874; Wynne v. State, 41 Tex. Cr. R. 504, 55 S. W. 837. It is needless to cite the other cases. In approving appellant’s bill of exceptions to the court overruling his motion for new trial on that ground, the court qualified and explained it by stating: “That n'o question was raised as to the venue until the motion for a new trial. The venue is shown circumstantially in numerous ways throughout the record, and more particularly in this, that the killing occurred at the Belcher farm, and the body was found at a point in the Norton pasture about 13 miles from there, and about one-half mile south of Red river, and in Hardeman county. G. W. Patton testifies (statement of facts, page 41; stenographer’s notes, page 33) that he now lives in Johnson county; ‘lived in this county last year, about one-half mile south of where W. R. Belcher lived.’ W. M. Middleton testified that he moved to this county, to the Belcher farm, etc.; Y. P. Foster, that the Belcher farm was 3.4 miles north of Goodlet.”

The Legislature, by said act and the proper construction thereof by this court, as shown above, intended that this court should only consider the question of venue on appeal when presented by the proper bill as required thereby. The wisdom of it is well illustrated in this case. Here we have a statement of facts of 150 typewritten pages, and, if not shown by a bill as required, we would be under the necessity of searching out from one end to the other of this 150 pages to ascertain whether or not the evidence was sufficient to show that venue was proved. However, in addition to the court’s qualification above quoted, we have found in this statement of facts ample evidence from which the jury were authorized to find that if the body found was that of W. R. Belcher, he was killed in Hardeman county.

There was no error in the court overruling appellant’s challenge of L. J. Tankersley, who was one of the veniremen, because he showed, as claimed by appellant, that he was disqualified to serve. His examination and testimony on his voir dire showed clearly that he was not disqualified but qualified in full accordance with subdivision 13 of article 692, under which the challenge was made. This question has been so often decided against appellant that we deem it unnecessary to collate the authorities, but see those cited under this subdivision of the article in the 1911 Revised O. O. P., and also under the same subdivision in White’s Ann. O. O. P.

Appellant has preserved a large number of bills of exceptions and raises a large number of questions. We have carefully considered all of them. They can best be understood, discussed, and decided by grouping those that pertain to the same matters.

Among other witnesses introduced by the state were B. R. Foster and D. Mullins. The substance of their testimony was that on May 31, 1912, they lived at the town of Goodlet, which was about three-quarters of a mile distant from where said W. R. Belcher’s home was, and where he lived at that time; that about 8:30 on the morning of May 31st they, together, passed said Belcher’s house about 50 yards therefrom; that they then saw W. R. Belcher, and Foster said he saw appellant, and heard appellant at that time do some pretty loud swearing; Mullins heard the same, but could not identify appellant as the party who used the language; that appellant at the time was standing just in the door five or six feet from his father, W. R. Belcher, who was passing from one door to the other at the time, and that they heard him say, “I guess, by God, you are about the last God-damu man that had it.” Mullins could not be so certain whether it was appellant who was talking or not, as he did not know him so well, and was not familiar with his voice; but this was at the same time and the same loud cursing and talking that Foster heard and testified about. Foster was more familiar with appellant’s voice, and in his judgment it was appellant who was doing the loud cursing and talking, and who said what is stated above. This testimony was admissible. It was not essential to its admissibility that these witnesses must know positively that it was appellant who was doing the talking and cursing;' but Foster does show by his testimony a sufficient knowledge of appellant’s voice, the situation of the parties, and all, so that it was admissible. The fact, if it be so, that they could not be certain about the matter would go to the weight of the evidence, and not to its admissibility.

It seems that a part of Foster’s testimony was first heard by the court in the absence of the jury, so that the court could determine whether the testimony was admissible over appellant’s objections; that, when the jury was brought back, and the witness was testifying before them, and appellant was making objections thereto, which were overruled, the court stated to the district attorney that, in order to connect it up, “You might ask him the questions I did while the jury was out.” Thereupon the district attorney stated to the court that he was not through with the witness, and intended to ask said questions. The appellant objected to the suggestions of the court to the district attorney, claiming that his remark was upon the weight of the evidence. The court, in allowing the bills, among other things, qualified it by stating that the testimony showed that the witness knew defendant by his voice. No error is shown in this matter.

Our statute (article 1, O. C. P.) says that the object the Code seeks is: “4. To bring to the investigation of each offense on the trial all the evidence tending to produce conviction or acquittal.” Judge White, in his Ann. C. C. P. § 1070 et seq., among other things, says: “Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue. Every fact which is part of the same transaction as the facts in issue is deemed to be relevant to the facts in issue, although it may not be actually in issue, and although, if it were not part of the same transaction, it might be excluded as hearsay. Whether any particular fact is or is not part of the same transaction as the fact in issue is a question of law, upon which no principle has been stated by authority, and on which single judges have given different decisions. Again, facts necessary to be known to explain or introduce a fact in issue, or relevant or deemed to be relevant to the issue, or which support or rebut afi inference suggested by any such fact, or which show the relation of the parties by whom any such fact was transacted, or which afforded an opportunity for its occurrence or transaction, or which are necessary to be known in order to show the relevancy of other facts, are deemed to be relevant in so far as they are necessary for those purposes respectively. Morrison v. State, 37 Tex. Cr. R. 601, [40 S. W. 591]. Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable. Whatever is a condition either of the existence or of the nonexistence of a relevant hypothesis may be shown. But no circumstance is relevant which does not make more or less probable the proposition at issue. McGuire v. State, 10 Tex. App. 125, No testimony should be offered by the prosecution which is not legal and relevant. Gazley v. State, 17 Tex. App. 267; Nalley v. State, 28 Tex. App. 387 [13 S. W. 670]. But evidence, though not bearing directly on the issue, nor sufficient per se to support a conviction, is admissible if it tends to prove the issue or constitutes a link in proof of it. Marshall v. State, 5 Tex. App. 273; Francis v. State, 7 Tex. App. 501. All the circumstances of a transaction may be submitted to the jury, provided they afford any fair presumption or inference as to the matter in issue. McMahon v. State, 16 Tex. App. 357; Grimmett v. State, 22 Tex. App. 36 [2 S. W. 631, 58 Am. Rep. 630].”

Again, in section 1072, he says: “However remote from the main issue in point of time, place, or other circumstances a fact may be, if relevant and tending to explain the main issue, the safer practice is to admit evidence thereof, leaving the question of the weight to the jury. Russell v. State, 11 Tex. App. 288. Facts tending to show a motive, though remote, are admissible in evidence. Dill v. State, 1 Tex. App. 278; Jones v. State, 4 Tex. App. 436; Rucker v. State, 7 Tex. App. 549.”

These principles are applicable to some of the questions raised in this case.

The state showed by a large number of witnesses, and, in fact, it seems not to have been controverted, that no one in that whole community and county ever saw W. R. Belch-er after May 31, 1912; that either on that day or the next the Belcher family, includ-. ing appellant, left the said Belcher home, and did not return thereto; that the appellant, either that day or the next, was seen to drive a wagon from this Belcher home, with some of the small children therein, and something lying in the wagon resembling a roll of bedding; that all the bed clothes were taken off of the bed in the home, and the situation of the house, of the furniture, and surroundings of the house showed that it had been hastily abandoned by the Belchers; that on June 7, 1912, some 13 miles from this home the body of a dead man was found in a secluded place, lying on a part of a wagon sheet and a common cheap blanket, covered up, with two quilts; that the tracks of a wagon were at the time shown to have passed right over where this body was found, and the evidence was clearly sufficient to show that this dead body was the body of said W. R. Belcher; that a day or two later appellant left Hardeman county, and went to Oklahoma City, where he was arrested, and brought back a few days after this body was discovered.

Outside of the confession or statement of the appellant hereinafter mentioned, and even therewith, the state was under the necessity, by circumstantial evidence very largely, of establishing the identity of this dead body as that of W. R. Belcher, and that the appellant had murdered him. In such case as this, courts and text-writers all say: “The mind seeks to explore every possible source from which any light, however feeble, may be derived.” Noftsinger v. State, 7 Tex. App. 301; Cooper v. State, 19 Tex. 449; Barnes v. State, 41 Tex. 342; Hamby v. State, 36 Tex. 623; Black v. State, 1 Tex. App. 368. “And in such cases the nature of the case in many instances demands a greater latitude in the presentation of the evidences of the circumstances than where a conviction is sought upon direct and positive testimony.” Noftsinger v. State, supra.

The state claimed the flight of appellant and his attempt to disguise his whereabouts and prevent detection by changing his name. Without objection, the state proved that on May 31, 1912, or the next day, Mrs. Belcher, with her children other than appellant, took up her residence in the said town of Goodlet, and did not thereafter live at said farm home, where W. R. Belcher and his family had lived up to that time, and that she (Ml-s. Belcher) rented out that farm on June 5, 1912, to Mr. Middleton. It was also, without question, shown, as stated above, that appellant in a day or two after May 31st left Hardeman county, buying a ticket for the train . on which he took passage to some nearby town in Oklahoma; that when he reached that town he did not get off, but paid his fare to the conductor from there to Oklahoma City, where he was found a few days after the said dead body was found, going under an assumed name, and at first denied .that he was the appellant, Percy Belcher.

It took the testimony of' several witnesses to independent facts known and testified to by them respectively to show or seek to show, as the state did, appellant’s flight, and the change of his name, and going under an assumed name. On this point, over appellant’s objections, the state proved by Mr. Vernon, the agent and manager of the Western Union Telegraph Company at Quanah, Texas, in May and June, 1912, and by Horton Murphy, the, messenger boy of said telegraph company at Quanah, that a day or two after appellant reached Oklahoma City Mrs. Belcher received a telegram at Quanah, signed G. W. Pender-graf, which said, “Please send me $16.45 to finish paying fine at once;” that on June 5th, just after the receipt of this telegram, said Mrs. Belcher went to the telegraph office, and had said operator to remit for her to said Pendergraf $20 by telegraph. Miss Williams,- who was the long distance telephone operator at Quanah in June, 1912, testified that there were two long distance calls from a party in Oklahoma City, which the data in her office showed were from Pendergraf, and that Mrs. Belcher did have a long distance telephone conversation from Quanah with some party at that time in Oklahoma City; that Mrs. Belcher did not come to the telephone office to do the talking, but talked from the phone at Mrs. Goodner’s residence. Mrs. Goodner testified that Mrs. Belcher at this time did have a long distance conversation with some one from her residence, in which she told the party that she was Mrs. Belcher, and she called the party to whom she was talking detective; that she had two such long distance conversations over her phone from her residence. In one of them she heard Mrs. Belcher say that the body was brought in, and that they seemed to think it was Mr. Belcher’s body, and that she .heard her also tell this party to go to the office, and inquire for G. W. Belcher’s mail and another party’s mail; and that Mrs. Belcher left with her at the time the charges of the telephone company for said two conversations. Roy Stovall testified that he was toll lineman for the said telephone company at Quanah in June, 1912, and that on June 8, 1912, he heard a conversation on the telephone line between Oklahoma City and Mrs. Goodner’s house in Quanah; that he did not know the voice of either party talking, but that one was a man’s, and the other was a woman’s, and that he heard the woman’s voice call the name of Clark in that conversation, and that it was about a letter; that the male voice said that he did not receive the letter, and that the woman’s voice said go to the post office, and call for a letter under the name of Clark; he could not remember.the initials, nor could he tell, being on the line, which voice was in Oklahoma City, and which was at Quanah. Mr. Middleton testified that shortly after he had rented said Belcher’s farm from Mrs. Belcher on June 5th, in moving back and forth, and, while he could not be certain, he thought it was before the said dead body was found on June 7th, he, for Mrs. Belcher, appellant’s mother, mailed a letter on the train for her, which train was going towards Eldorado in Oklahoma. He could not remember, as it was not impressed upon him, the name or the address of the person to whom the letter was addressed. Mr. Morris, who was a city detective at Oklahoma City in May and June, 1912, testified that he went to the pest office, and watched for a party to come there to call for a letter addressed to W. M. Clark; that about 1:05 p. m. the appellant called at the post office in Oklahoma City for this letter, and that he at once arrested him; that at the time the post office clerk became excited, and did not deliver the letter to appellant; that he arrested appellant, asked if his name was not Percy Belcher, which he first denied; upon being told by Morris that he knew him, he then admitted his identity and name; that Morris then, got said letter addressed to said Clark, and turned it over to appellant, and that he saw appellant take a $20 bill out of it. Appellant did not object to the said testimony of Morris, but did object, on various grounds, to the testimony of each of the above-named witnesses whén they respectively gave their testimony in substance as given above. We have carefully considered appellant’s respective objections to this testimony with the explanation and qualification made by tlie court in approving the respective bills. The respective bills themselves, if taken alone, are each too meager and do not comply with the well-established rules so as to require consideration thereof by this court. But we have gone over them all, as stated, and,' in our opinion, the testimony of the respective witnesses was admissible in this case, and none of appellant’s objections thereto should have been sustained, and none of them present any reversible error in this ease.

As stated above, one of the main contested points in this case was whether or not said dead body was that of W. R. Belcher. Another was whether or not, even if it was his body, he was murdered, and by whom? The state contended that it was his body, that he was murdered, and that appellant had committed the offense. The appellant contended the reverse of this. Another contested point was, even if this body was that of W. R. Belcher, and that his death was brought about by unlawful violence, by what means was his killing effected?

When this body was first found, as stated above, decomposition had taken place to. a considerable extent. Holes made by worms in the body or some external objects were shown in various locations on the body. Many persons viewed the body from the time it was found until it was interred the next day, on June Sth. No one knew from such examination or otherwise whether this body was that of W. R. Belcher, or whether he came to his death by violence at the hands of another, or, if so, what means were used to effect it. Various opinions and guesses were indulged. Some thought it was his body; others thought not. Some thought that he had been killed with an axe; others that he had been shot, but with what kind of gun was unknown and guessed at variously by said persons. Some thought he was shot with a shotgun in the breast; some in the throat; others that he was shot in the back of the neck or head; some with some kind of gun; others with another. No one knew, and no one could definitely tell.

Appellant had been arrested about June 10th in Oklahoma City, and within the next day or two turned over by the authorities of Oklahoma to the sheriff of Hardeman county, and by him brought back to Hardeman county, and placed in the jail there on or about June 14th. While thus confined in said jail on this charge, the court permitted the staté to introduce the testimony of the sheriff, B. Frank Walker, to an oral confession or statement by appellant to him, which was made on the Sunday following his return from Oklahoma City, and after the said body had been interred, to this effect: That he (appellant) had shot his father, W. R. Belcher, with a shotgun a little to the back of the right of the head with small shot; he said with either No. 6 or No. 7% shot; that his father had had one of his teeth pulled out, and that the tooth next to that one had a decayed place in the center of it.

The state then introduced evidence showing that the next day after this confession or statement by appellant it had this dead body disinterred, and an accurate examination thereof made, which showed that the dead body had been shot at the place, and with small shot, as stated by appellant, and that there was one of the teeth missing,- and that the one next to it had a hole in the center. In the previous examination of this body no one had ascertained and no one knew that this body had been shot at the exact location stated by appellant, though some thought perhaps this had been done. No one knew and no one could testify that prior to this confession and the examination of the body, after it was disinterred, that he had been shot at this location with small shot. This examination developed with certainty that this was the location, and that he was shot with small shot, and then for the first time were small shot seen and extracted from the body of the deceased where shot. It was known before that this body had a missing tooth; but, while this was true, it was not known prior to then that the tooth next to the missing tooth had a hole in the center of it. Still, again, while it was known before that this body had a missing tooth perhaps at the same location that W. R. Belcher had had a missing tooth, yet whether or not that was his body was not known with certainty by any one.

There can be no question that, from the testimony in this case, all of it, whether this was the body of W. R. Belcher before this confession and subsequent verification was unknown; that he had been shot in the location fixed with' small shot was not known; that the tooth next to the missing tooth had a hole in the center of it was not known. The confession or statement of the appellant was without doubt the means and the cause of the discovery of these respective facts with certainty.

Our statute (article 810, O. C. P.) expressly provides in substance, and it has uniformly been so construed by many decisions of this court, that the oral confession or statement of an accused while in custody, when voluntarily made by him, when in connection therewith he makes statements of facts or circumstances that are found to be true, and which conduce to establish his guilt, or the instrument with which he states the offense was committed, is admissible.

It is also the settled law of this state that whether or not such statement or confession is admissible is a. question of law to be decided by the judge and not left to the jury. However, if it should be contested that the confession was not voluntarily made, or the making of such confession should be denied by the appellant, the court should submit sueb issue to the jury; but, if these matters are not in issue, then the court should not submit them to the jury. In this ease the confession was shown to have been voluntarily made by appellant after being duly warned, and he did not dispute that he had made said confession. Therefore, as said by this court in Jordan v. State, 51 Tex. Cr. R. 146, 101 S. W. 247, and many other cases: “A confession is criminative evidence like the facts that other witnesses in this case testified about, and it is not proper for the court to single out the confession under the facts in this case for any purpose.” For other cases along this line, see section 236, Branch’s Criminal Law, and cases there cited. For a collation of some of the cases' under the said statute above cited, to the effect that the oral confession of an accused in custody which results in statements of facts and circumstances that are found to be true which conduce to establish his guilt, and the instrument with which he states the offense was committed has been found, are admissible, see section 1034 et seq. of White’s Ann. C. C. P,

So that we think in this case the appellant’s confession was clearly admissible, and the court should not have charged thereon in any particular as contended by appellant.

The court correctly permitted several witnesses to testify that the next day and for a few days thereafter they went to the former home of said W. R. Belcher, and found blood at various places on the ground, the side of the house, and the floor thereof as testified to by them. They did not have to be doctors nor experts to determine whether or not what they saw was blood.' None of them attempted to state whose blood it was, or in any way analyze it.

The court’s charge as a whole, and neither paragraph thereof, is on the weight of the evidence as complained by appellant. The charge, in every instance, leaves everything necessary to have been found by the jury to them without any intimation by the court as to the weight of the evidence to establish any fact in the case. We cannot understand how the judge could have more fairly submitted all these questions to thé jury, without any intimation of his opinion, if he had one, for or against the appellant.

The state did not prove or offer to prove the confession or statement of the appellant otherwise than as, in substance, has been shown above. The appellant, in cross-examination of the state’s witness said Sheriff Walker, when the state introduced his testimony showing said confession by appellant, did not show or attempt to show any other confession containing exculpatory statements or otherwise by him at that time. Subsequently, after the state had rested, and the appellant had introduced considerable other testimony, he introduced said Walker, the sheriff, and himself proved another confession or parts of said confession which would be termed exculpatory and in his favor. It is only when the state introduces such exculpatory statements in the confession, and relies upon such confession, practically wholly, for the purpose of proving an appellant’s guilt, that makes it necessary or proper for the court, under any contingency, to charge in effect that such exculpatory statement is to be taken as true, unless the state proves the falsity thereof. So that appellant’s contention that the court committed reversible error in not so charging in this ease, and (citing Pharr v. State, 7 Tex. App. 472, and other authorities along that line) even if they were applicable, and laid down the law as contended by appellant, could not be maintained in this cause, and the court did not err in not charging on the subject as contended for by him.

Appellant contends that the court should have submitted a charge in his favor on the question of a threat. There is no evidence in this case of any threat by W. R. Belcher against appellant at any time. The only thing that could be contended was a threat is that of appellant in introducing his confession that he killed his father; that his father right then said, “I will fix you right now,” and grabbed for an axe; and that hé immediately killed him. Even if that could be construed to be a threat, it was at the very time of the killing, and it was not necessary to charge the law of threats at all because thereof. Hancock v. State, 47 Tex. Cr. R. 9, 83 S. W. 696; Armstrong v. State, 50 Tex. Cr. R. 27, 96 S. W. 15; Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Davis v. State, 52 Tex. Cr. R. 149, 106 S. W. 144.

Appellant has some criticisms of the court’s charge on the subject of self-defense. The only question in the whole record that suggests any self-defense is that part of appellant’s confession introduced by him to the effect that his father told him immediately before or at the time of the killing that he and his mother had separated, and that he-himself was going to take some of the younger children; that thereupon he (appellant), by his motions and what he said to his father, stated that he would forbid and not. permit his father to take the children; that thereupon his father said, “I will fix you right now,” and started to pick up an axe. The distance between appellant and his father at this time was shown by the sheriff' to hare been 15 feet. Appellant claims that immediately when he started to pick up this-axe, with his said declaration, that he thereupon shot and killed him, claiming he did so-in self-defense. As stated, it was demonstrated that this shot took effect in the back of the neck and lower part of W. R. Belch-er’s head behind the right ear. The court, submitted, we think, self-defense in appellant’s favor in every way favorable to him. that was raised or suggested by this testimony, and that there is no error in the court’s charge on the subject. ' . .

The appellant himself, and he alone, introduced testimony showing that his father was a violent and dangerous man, and had had fights with various persons, and had killed one man; in addition, that his general reputation was that of a dangerous and violent man; in addition, he expressly proved that he (appellant) was a young man 19 or 20 years of age, and weighed about 145 or 150 pounds, that his father was a man 45 or 46 years of age, about 6 feet tall, and weighed from 170 to 185 pounds, and a very active man. Under these circumstances, the court did not err in submitting appellant’s claimed self-defense by, among other things, using the expression, “or if by the acts, words, or conduct, or threats then made, if they were, of W. R. Belcher, at the time it reasonably appeared to the defendant that said W. R. Belcher was about to attack him, and from the manner of such attack or threatened or apparent attack, and defendant’s knowledge of the character and disposition of said W. R. Belcher, and relative strength of'the parties, caused him to have a reasonable fear or expectation of death or serious bodily injury,” etc. The part of this charge complained of is the words “and defendant’s knowledge of the character and disposition of said W. R. Belcher, and relative strength of the parties.” This was very appropriate, and in no way the subject of adverse criticism by appellant, under the facts and circumstances of this casé.

In concluding his printed brief in this case, which is a vigorous and forcible one, appellant, by his able attorneys, among other things, says: “The evidence shows that W. R. Belcher was a most violent and dangerous man, having killed a man himself, when the defendant was a baby. Human experience teaches us that, when the mother is assailed, a true and loving son flies to her rescue. Again we say, if the confession was made, then it was true, being unimpeached, that a vicious father was attempting to take from that mother by force her children, and that in the effort on part of the defendant to prevent this distress being brought upon the mother the unfortunate difficulty arose.” Evidently this contention was made by the appellant before the jury, and this evidence was introduced by him for the purpose of showing the violent and dangerous character of his father, which was unquestionably known to him, if it was true, and their relative size, age, and strength was proved by him; it was appropriate' for the court to charge, as he did, on this issue, and it was entirely applicable to the question as made by the appellant himself.

Notwithstanding this record is a voluminous one, containing hundreds of pages of typewritten matter, we have carefully read and considered the whole of it, and, in our opinion, appellant presents no question that would authorize or require this court to reverse this case, and it will therefore be affirmed.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    DUNN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Gaming- (§ 72) — Public Place — Appurtenance.
    A private residence cannot be an appurtenance to a public road, near which it is, so as to authorize prosecution for permitting gaming therein, as in a public place.
    [Ed. Note. — Por other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.]
    2. Criminal Daw (§ 421) — Evibence—Hear-say.
    Testimony that defendant was reputed to be in control of a private residence is hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. § 421.]
    3. Criminal Daw (§ 634) — Trial—Presence of Court.
    The court should not 'absent itself during the trial, and lose control of the case.
    [Ed. Note. — For other cases, see Criminal Law,] Cent. Dig. §§ 1461-1464; Dec. Dig. §
    4. Criminal Daw (§ 718) — Argument op County Attorney.
    The county attorney, in argument, should not go outside of, and talk about things not in, the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1668; Dec. Dig. § 718.]
    5. Criminal Daw (§ 862) — Jurors—Giving . Information About Defendant.
    Under the statute prohibiting reception of evidence after the jury has retired, one of the jurors should not tell the others what he knows about defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2055; Dec. Dig. § 862.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Gertrude Dunn was convicted, and appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the state.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

The complaint and information charge'that appellant unlawfully permitted a game of cards to be played upon premises then and there under her control; the said premises then and there being appurtenances to a public place, to wit, a public road. Under the recent decisions of this court, this complaint would not charge a violation of the Statute. The article which would justify or authorize this prosecution was held in the Robertson Case, 159 S. W. 713, recently decided, to be invalid; that the Legislature did not intend to bring it forward in the Revised Penal Code of 1911, art. 559, and in doing so they made a mistake. That seems to ’be the only statute under which this prosecution could have been instituted. The writer did not agree with that opinion and entered liis dissent, which speaks for itself.

But aside from this, this prosecution cannot be maintained, because a private residence cannot be an appurtenance to a public road, and the evidence shows this was the home and private residence of appellant, which was situated between two public roads. We have searched for some authority which would justify or authorize the holding of a private residence to be an appurtenance to a public road, but have failed to find it. In fact, we do not believe such authority can be found. Mr. Webster defines “appurtenance” in legal acceptation as “something belonging to another thing as principal, and which passes as incident to it, as a right of way, or other easement to land; a right of common to pasture, an outhouse, barn,” etc. We do not understand how a private residence can be an appurtenance to a public road.

The state asked the following question: “What was the general repute as to who was in possession and control of these premises where defendant stayed?” Many objections were urged by appellant, but overruled by the court, which we deem unnecessary to recapitulate, and the witness answered, “It is reputed that defendant and Henry Tillman were in control of said premises.” As urged by appellant, this was not proper testimony; it was hearsay, opinion of the witness, and was not admissible for the purpose of proving control in the defendant. These objections, we think, are well taken. There was no allegation that the house was a public house of prostitution or disorderly house, but simply the private residence of the appellant.

The county attorney used the following remarks in his closing speech: “This negro, defendant, is but a common prostitute, and that is the reason Bud Sebastian was hanging around there. She has run a regular whorehouse, and it is time the juries were breaking it up and putting a stop to it. The jury may turn her loose and license such conduct, but as long as I am county attorney I will continue to prosecute them, and it is up to the jury to do their duty.” Exception was promptly taken to these remarks, and an effort made to have the county attorney stopped and the jury instructed not to consider same; but the judge presiding was not present in the courtroom or in hearing of defendant’s counsel or in view of the trial, but was at the time downstairs in the back room of the sheriff’s office talking over the telephone. That the judge returned, and the attorney for defendant told the judge of the remarks the county attorney had made, and ' that he had gone out of the record and made remarks prejudicial to defendant and such as would tend to inflame their minds; that the court told defendant’s attorney that he could not hear the remarks for the reason that he was downstairs at the time in the back room of the sheriff’s office talking over the phone and out of sight of the courtroom and not in view of same, and that he did not and could not hear the remarks and could not instruct the jury about same, because he could not and did not hear them on account of being downstairs, and for that reason would not instruct the jury. Appellant then took his bill of exceptions. The court qualifies this bill as follows: “At the time it is claimed the county attorney made the alleged statements, the court was downstairs in sheriff’s office talking over the telephone and could not see or hear remarks. That sheriff’s office is out of hearing and view of courtroom, and the court not hearing remarks and not knowing, only from information, as to what was said, and not 'being requested to instruct the jury as to not considering remarks of county attorney. The court did not understand that defendant asked for any instructions, but merely complained that he desired to object to remarks, and the court was not .present. With this qualification same is approved.” He further qualifies the bill as follows: “The court was not asked to give instructions to jury to not consider alleged improper remarks, and for that reason did not instruct' jury not to consider said alleged remarks.” The latter was the second qualification to the 'bill. This bill seems to present two errors: First, that the court was absent during the trial and lost control of the case, which has been held to be erroneous ; and, second, that the county attorney went out of the record and talked about things that were not in the record.

Another bill recites that Meridith, being sworn, states: He was in the jury room that tried defendant in this cause. That he was foreman of the jury. “I remember while we were out considering the case that Mr. Ferguson, one of the jurors, stated that some time ago he was deputy sheriff in this county, and that he got well acquainted with defendant. That she gave them lots of trouble, and that she was a bad character. That the other officers went to her house in Rock-wall county and come mighty near catching them gambling. That he made 'other remarks about what he knew of defendant. That he could not remember what they were. That same did not influence him in his verdict. That he believed that at time remarks were made that the jury had voted her guilty, ■but had not voted the penalty. That some of the jurors wanted to fine her $100.” C. 0. Ferguson, being sworn, testified: ‘T was on the jury that tried defendant in this case. I remember stating to jury that when I was deputy sheriff I went to this house of defendant, and we liked to have caught them gambling; that I knew defendant and she was a tough character. This was after we had voted her guilty. I made the statement in the jury room to the jury, but it did not influence any of them. We had not voted the penalty at the time I made the statement. We had agreed not to say anything about me saying that in jury room.” This was urged in connection with the motion for new trial. The statute prohibits the reception of testimony after the jury has retired to consider of their verdict. This is made by statute a ground for new trial. This testimony seems to be pretty much along the same line as the county attorney’s argument. We call attention to these matters so that they will not occur in the trial of other eases. Our statutes were solemnly passed by the Legislature, or supposedly so at least, for observance, and the legislative department had the authority to enact this legislation and demand respect and obedience to such enactment by all the constituted authority of the state. The courts will take due notice and govern themselves in obedience to the legislative will where they have authority to enact such legislation. We hope these matters will cease to occur in the trial of cases.

• The judgment is reversed, and the cause is remanded.


author: HARPER, J.

text:
    DAWSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    Rehearing Denied Dec. 17, 1913.)
    1. Homicide (§ 250) — Sufficiency op Evidence — Manslaughtee.
    Evidence, on a trial for homicide committed with a knife in a fight, held sufficient to support a conviction for manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    2. Homicide (§ 63) — Degree op Offense-Manslaughter.
    Where, in a fight between accused and deceased, deceased, who had no weapon, had accused down, but voluntarily got off of him when accused called for help, and two other encounters were then caused by accused continuing the quarrel, ■ and, when one knife was taken away from him, opening another, and advancing on deceased with a threat to cut his throat, the fact that he was a smaller man than deceased did not reduce the grade of the offense below manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 86, 87; Dee. Dig. § 63.]
    3. Homicide (§ 156) — Evidence — Admissibility.
    On a trial for homicide, where accused contended that he acted in self-defense, and that, if not, as the knife he used was not a deadly weapon per se, he was guilty of no higher grade of offense than aggravated assault, the testimony of a physician as to the location and extent of the various wounds inflicted on deceased was admissible on the issue of whether an intent to kill was manifest from the mode and manner of the use of the knife, though it had already been proved that deceased died from wounds inflicted by accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dec. Dig. § 156.]
    4. Homicide (§ 174) — Evidence—Declarations op Injured Party.
    On a trial for homicide committed in a fight, evidence that deceased, after receiving the fatal injuries, and while being taken to a doctor, asked where “the son of a bitch” (meaning accused) was, was properly excluded, since it would have shed no light on the actions of either party during the difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    5. Criminal Law (§ 866) — Conduct op Jury —Manner op Arriving at Verdict.
    That some of the jurors, after it was ascertained that the jury were unanimous in finding accused guilty of manslaughter, but disagreed as to the punishment, added up the number of years each desired to inflict, and that the result so obtained was subsequently agreed upon as the verdict, did not render the verdict one arrived at by lot within the meaning of the statute, where there was no previous agreement to abide the result, and such punishment was agreed, upon only after much further discussion, and after the taking of several ballots.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2063; Dec. Dig. § 866.]
    6. Criminal Law (§ 885) — Trial—Suspension op Sentence — Submission.
    That the court at accused’s request submitted the question of suspending the sentence, and that the jury made no recommendation or return on that issue, did not present error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Court, Mitchell County; W. W. Beall, Judge.
    Jim Dawson was convicted of manslaughter, and he appeals.
    Affirmed.
    W. A. Anderson, of San Angelo, and L. W. Sandusky, of Colorado, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This is the second appeal in this case; the opinion on the former appeal being reported in 155 S. W. 266. The case being reversed, he was tried again, and again convicted of manslaughter.

The evidence is recited in brief form in the former opinion; but, as appellant insists that the evidence is insufficient to convict, we will state the evidence a little fuller as to the state’s witness J. H. Williams. It having been shown that appellant had had a quarrel that morning in which appellant cursed deceased, claiming that he had told a lie on him, when deceased said that it was not him who lied. Subsequently they both went to the gravel pit to haul sand, when deceased approached appellant and said “he guessed it was about time for them to settle their little trouble.” Appellant replied, “All right,” pulled off his gloves, and went meeting deceased; they met arid fought, deceased getting appellant down, when he called for Williams to pull deceased off. At this deceased got off. of him, when the quarrel was renewed, appellant having a knife in his hands; deceased' knocked it out of his hands, when they again fought, deceased again getting appellant down on the ground. Appellant again called to Williams to pull deceased off of him, when deceased again got off of appellant. The quarreling continued, but, Williams said, had quieted down, when appellant remarked, “I am a damn good notfón to cut your throat,” in an angry tone, speaking as if he meant it. Deceased replied for him not to do that; that he could not afford to do it, and commenced backing, when appellant advanced on him with an open knife in his hands, and when appellant got near to deceased, deceased struck appellant with his fist and knocked him back. They then again began to fight, when appellant inflicted the knife wounds which resulted in the death of deceased. Deceased at no time had any weapon of any kind, while it appears that appellant was armed with two knives. This certainly would support a verdict of rnari-slaughter, if the jury believed that appellant had the intent to kill, or the knife from the mode and manner of its use was calculated to produce death. Williams says that, after deceased had gotten off appellant twice, the cursing kept on; Dawson, appellant, doing the most of it. Under such circumstances, it would be immaterial that appellant was the smaller man. At least, after the first encounter, when deceased had voluntarily gotten off of him when appellant called for help, two other encounters were produced by appellant continuing the quarrel, and, when one knife was taken away from him, he opened another, and advanced on deceased with the threat he had a good mind to cut his throat.

Dr. Willis R. Smith testified he examined the body of deceased and said: “The wounds I found were on the anterior surface of the body, on the front surface of the body, between the fifth and sixth ribs; just below the nipple on the left side, there was a stab or punctured wound about an inch or an inch and a half in length; just below that, between the seventh and eighth ribs, there was a wound that went to the rib about 2 inches in length; over the anterior surface of the belly, over the region of the liver, there were two cuts, the principal one being the longer one of the two, about 2% inches, the lower one being about 2 inches, the lower one being through .the abdominal cavity, cutting about the same length into the liver, being a very shallow wound into the liver. On the left hand, over the ribs, over the abdominal cavity, there was one that went into the abdominal cavity, but not into the intestines; over the right groin there was also a wound there, and a wound, the one on the back, which was nothing but a skin wound, reaching from the point of this shoulder [indicating] around under the shoulder blade [indicating], cut) through the— underneath and through the skin; yes, sir. That was in the direction of the shoulder blade. There were none of his intestines cut at all, there was a cut in the liver, just a casual wound, but there were no wounds at all in the intestines. The first wound which X described, the depth of that wound, it punctured into and went into the heart sack, and went clear through the heart cavity, the outside of the heart, into the heart cavity. As to what was the depth of that wound into the heart, the heart, of itself, is about, ordinarily about five-eighths of an inch * * * and then there is the abdominal wall that it had to go through it and into the pockets of the heart. The abdominal wall there, I should say, is an inch, or an inch and a quarter—the chest wall there; that is the only spot where the heart comes against the chest wall, where you can feel the heart beat; the depth of that would then be about an inch and five-eighths. That was a fatal wound; it punctured into the heart, and the heart just simply bled itself to death. The wound that I have described on the liver wasn’t fatal at all, there was nothing about it that would have been serious. None of the other wounds were fatal, except the wound in the heart. Let’s see, there were one, two, three, four, five, six, seven—seven wounds in all. I have not thought about it since that time, since a year ago.” Appellant objected to this testimony, on the ground that the testimony before Dr. Smith was called already proved that deceased died from wounds inflicted by appellant; that such testimony would prejudice the jury against appellant. Appellant’s contention on the trial was: First, that he acted in self-defense ; and secondly, if not in self-defense, then the knife, not being a deadly weapon per se, he would be guilty of no higher grade of offense than aggravated assault. Such being his contention in the case, this testimony was admissible on the issue of whether, from the mode and manner of the use of the knife, the intent to kill was manifest, and the court did not err in.admitting it.

After deceased was cut, he requested Mr. Williams to place him in the wagon and carry him to a doctor. Mr. Williams did this, and while on the way to town, asked Mr. Williams, “Where is the so'n of a bitch?” meaning appellant. Appellant desired to introduce this qumre in evidence; but, as it was some time after the difficulty, and could shed no light on the action of either of them during the difficulties, there was no error in excluding it.

Appellant alleges misconduct of the jury, in that they arrived at their verdict by lot. . The evidence shows: That the jury at first were unanimous in finding appellant guilty of manslaughter, but they were not' in accord as to punishment. Some favored five years, some two and three, and one four, years’ imprisonment. That several ballots were taken. Some added up the number of years each desired to inflict, and a result of 3% years obtained. All the jury say there was no previous agreement to abide by the result. That when the result was obtained, all the jury .would not at first agree to it, some still contending for five years, but that finally they agreed to Sy2 years. This is not arriving at a verdict by lot within the meaning of our Code. There must have been a previous agreement to abide the result, and. the evidence must show they felt bound by it, and for tills reason acceded to the result. The evidence in this case discloses there was no such agreement, and an agreement obtained only after much discussion and several ballots had been taken after the addition had been made.

There was no evidence calling for a charge that “if defendant approached deceased to demand an explanation,” etc. The evidence excludes the idea that the meeting was brought on this way at the time death was inflicted.

The fact that the court, at the request of appellant, submitted the question of suspending the sentence, and the jury did not recommend it, nor make any return on that issue, presents no error.

We have carefully considered the record, and each ground of error assigned, and, there being no error, the judgment is affirmed.


text:
    COWLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Intoxicating Liquors (§ 233) — Criminal Prosecutions — Evidence.
    On a trial for selling intoxicating liquors in prohibition territory, evidence as to the receipt by accused of shipments of liquor about and prior to the time of the alleged sale was admissible to show his possession of the article alleged to have been sold.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298% j Dec. Dig. § 233.]
    2. Criminal Law (§ 338) — Evidence.
    On a trial for selling a half pint of whisky in prohibition territory, where the state showed the receipt by accused of shipments of whisky about and prior to the time of the alleged sale, the waybills for which described the shipments as a specified number of quarts and pints, the testimony of the express agent that he had examined shipments so marked, addressed to other parties, and found them to contain half pint bottles should have been excluded, though, if he had examined any of the shipments addressed to accused and found such condition to exist, he could so testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. J§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.-]
    3. Intoxicating Liquors (§ 233) — Criminal Prosecutions — Evidence.
    On a trial for selling intoxicating liquor in prohibition territory, where accused testified that he was asked by the prosecuting witness to get him some whisky from D, and that he did so, it was error to exclude evidence of a witness that accused, just prior to the alleged sale, asked him if he knew where D. was, telling him that he wished to get some whisky from D. for a sick person, that he directed accused to D., and that accused left in that direction, and immediately thereafter delivered a half pint of whisky to the prosecuting witness, since this would have strongly supported accused’s theory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § ¿33.]
    4. Criminal Law (§ 814) — Instructions — Conformity to Evidence.
    On a trial for selling intoxicating liquors in prohibition territory, where, though accused testified that he procured a half pint of whisky from D. for the prosecuting witness, there was no evidence that in doing so he was D.’s agent, an instruction that if he unlawfully sold such liquor as the agent of D. he was guilty, was improperly given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. $ 814.]
    5. Intoxicating Liquors (§ 169) — Criminal Prosecutions — Sales—Acting as Purchaser’s Agent.
    A person who was not interested in a sale of whisky at the time of the prosecuting witness’ demand therefor and its delivery to him, but who merely acted as such witness’ agent in procuring the whisky was not guilty of selling it.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 187, 188; Dec. Dig. § 169.].
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    John Cowley was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Reversed and remanded.
    J. S. Crumpton, of New Boston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at one year’s confinement in the penitentiary.

Appellant earnestly insists that the evidence in this case will not sustain a conviction. To this we cannot agree, but think the evidence offered in behalf of the state ample to justify a conviction, but, as it will be necessary to reverse the case on other grounds, we will not give it in detail, nor discuss it further.

The state proved by the agent of the express company at New Boston that appellant received and receipted for the following shipments of liquor about and prior to the time he is charged with having made a sale in this case: October 12, 12 quarts of whisky; October 13, 12 quarts of whisky; October 19, 12 quarts of whisky; October 20, 12 quarts of whisky; October 26, 120 pints of beer; November 4, 24 pints of whisky; November 13, 12 quarts of whisky; November 21, 24 pints of whisky. This testimony was objected to. This question has often been before this court, but finally it was determined that it was admissible to show that appellant was in possession of the article alleged to have been sold. See Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Starbeck v. State, 53 Tex. Cr. R. 192, 109 S. W. 162; Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392. Since the rendition of those opinions this has been the unbroken line of decisions in this court, and is no longer an open question. However, after proving the reception of this liquor, as the evidence offered in behalf of the state showed the sale of only one-half pint, the state was permitted to show hy the express agent that, although the waybills showed quarts and pints of whisky received, yet he had occasion in the past to examine some packages thus marked, and they would really contain pint and half pint bottles. He was asked if he had examined any packages received by appellant and found this condition to exist, and he answered, “No.” We do not think that what he found in packages addressed to other people, and with which appellant is in no way shown to have had any connection, was admissible against appellant, and the court erred in permitting the witness to thus testify. If he examined packages addressed to appellant and found such condition to exist, he could so- testify.

Defendant testified that the prosecuting witness had approached him and asked him to get him some whisky from Oliver Daniels, and that he did procure the whisky from Oliver Daniels. He offered to prove by Milam Johnson the following facts, as shown by the bill: “That on or about 3:30 or 4 o’clock on the day of the alleged sale, defendant approached witness, and asked witness if he knew where Oliver Daniels was, also stating to witness that he wished to get some whisky from Daniels for an old negro who was sick. That witness directed defendant to Daniels. That defendant left witness in the direction of Daniels. And that immediately thereafter the defendant delivered to witness John Smith one half pint of whisky.” This all took place prior to the alleged sale, and would have a strong tendency to support appellant’s theory of the ease. When he testified that he went in search of Oliver Daniels and got the whisky from him and delivered it to the prosecuting witness, if Milam Johnson knew as a fact that appellant was searching for Oliver Daniels, and went in the direction where Oliver Daniels then was, and immediately thereafter delivered the whisky to the prosecuting witness, we cannot understand by what rule of law this much of the evidence was excluded, and the court erred in doing so.

What Oliver Daniels may have told the witness Tom Morris would be clearly hearsay and inadmissible, and the court did not err in so holding.

The court instructed the jury: “If, however, you believe from the evidence beyond a reasonable doubt that the defendant was the agent of Oliver Daniels, and that defendant unlawfully sold the intoxicating liquor described in the indictment to John Smith as such agent of said Daniels, in Bowie county, Tex., on or about November 23, 1912, then, in that event, if you so believe beyond a reasonable doubt, the defendant would be guilty, and you should so find.” As there was no evidence raising the issue that, if appellant did procure the whisky from Oliver Daniels, he was the agent of Daniels, this part of the charge should not have been given ; but, under the facts of this case, the issue was correctly presented in the following special charge, requested by appellant: “You are instructed the law to be that if defendant at the time of the delivery of this whisky, and of the demand therefor, the defendant was not interested in said sale, but was merely acting at the time as agent for the purchaser of said whisky, you will acquit him.” While this special charge may be said to have been sufficiently covered by the charge, as given, if the above excerpt presenting the reverse of the special charge had not been given, yet, as there was no evidence that appellant was the agent of Oliver Daniels, the charge, as given, was erroneous.

The remainder of the motion for a new trial presents no error.

Reversed and remanded.


text:
    JAMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Seduction (§ 50) — Instructions—Corroboration oe Female.
    On a trial for seduction, an instruction that no conviction could be had upon the testimony of the female alleged to have been seduced, unless corroborated by other evidence tending to connect accused with the offense charged, that the corroborative evidence need not be direct and positive, independent of the prosecutrix, that such facts and circumstances as tended to support her testimony, and which satisfied the jury that she was worthy of credit as to the facts essential to constitute the offense, were sufficient, and that it was for the jury to say from all the facts and circumstances in evidence whether she had been sufficiently corroborated, was erroneous, and the court should have charged that the jury must find that her testimony was true, and also find that there was evidence, independent of her testimony, tending to connect accused with the commission of the offense.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    2. Seduction .(§ 46) — Evidence—Corroboration.
    On a trial for seduction, there must be some fact, independent of the testimony of the pros-ecutrix, tending' to connect accused with the offense, to justify a conviction. -
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    3. Seduction (§ 46) — Evidence—Corroboration.
    On a trial for seduction, letters purporting to have been signed by accused did not corroborate the testimony of prosecutrix, where there was no testimony except hers to show that they came from accused.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    4. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence — Corroboration.
    On a trial for seduction, where there was-no evidence except the testimony of prosecutrix to show that letters purporting to have been written by accused came from him, an instruction that if the jury found that she testified that she received such letters from accused and that he wrote them, but should further find that there were no other facts showing that accused wrote them except prosecutrix’s testimony, then the letters would not be sufficient to corroborate, if they did corroborate, her testimony, and that, unless they found other facts outside of her testimony and the letters tending to connect accused with the offense, they should acquit, was erroneous, as it was on the weight of the evidence, assumed that the prosecutrix’s testimony as to the letters was true, permitted the jury to judge for themselves whether they would consider the letters as corroborative, and allowed them to consider the letters, though not, identified by other evidence than that of prosecutrix, in connection with other evidence, in determining the sufficiency of the corroboration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1781-1748, 1752, 1768, 1770; Dee. Dig. §§ 763, 764.]
    5. Seduction (§ 50) — Instructions—Cobbob-okation.
    On a trial for seduction, there was no evidence, except the prosecutrix’s testimony, to show that letters in evidence came from accused. The court charged that if she testified that she received such letters from accused and that he wrote them, but the jury should find that there were no other facts showing that he wrote them, then they would not be sufficient alone to corroborate her testimony; that unless there were other facts, outside of her testimony and the letters, tending to connect accused with the crime, they should acquit; that if they should find that there were other facts showing that accused wrote the letters, and if the letters corroborated her testimony, they might be considered for that purpose; and that if they should not consider the letters as corroborative evidence but should find, beyond a reasonable doubt, that accused, by promise to marry, seduced the pros-ecutrix, and that her testimony had been corroborated by other evidence, outside of the letters, connecting accused with the offense, they should convict. It refused an instruction that the prosecutrix must be corroborated by testimony other than her own tending to connect accused with the offense, and that, unless the jury found from testimony, other than that of pros-ecutrix, that accused wrote the letters, then they alone would not furnish the corroboration required to warrant a conviction. Held, that the instructions given were erroneous, and that requested improperly refused, since the jury should have been pointedly told that the letters could not be used as corroborative evidence unless there was evidence, independent of that of prosecutrix, tending to show that accused wrote them, and that she could not be corroborated by her own statements regarding them.
    [Ed. Note. — For other eases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Lynch James was convicted of seduction, and he appeals.
    Reversed and remanded.
    C. O. James, of Sulphur Springs, and Jones & Jones, of Mineóla, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexei

   DAVIDSON, J.

Appellant was convicted of seduction; his punishment being assessed at eight years’ confinement in the penitentiary. The application for continuance will not be discussed in view of the reversal of the judgment The evidence may be obtained upon another trial.

The court charged the jury: “The law provides that in prosecutions for seduction, under the provisions of the Penal Code,, the female alleged to have been seduced shall-be permitted to testify, but no conviction shall be had upon the testimony of the said, female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged. You are, however, instructed that the corroborative evidence need not be direct and positive, independent of the prosecutrix, Cora Tucker, but such facts and circumstances as tend to support her testimony, and which satisfy the-jury that she is worthy of credit as to the-facts essential to constitute the offense of seduction, as defined and explained in .this-charge, will fulfill the requirements of the láw as to corroboration, and it is for you to-say from all the facts and circumstances in evidence before you whether she has been sufficiently corroborated.” It is urged that this charge is on the weight of the evidence- and assumes that the testimony of the prose-cutrix is true. It does not first require the-jury to believe the testimony of the prose-cutrix true, and that she be corroborated by other evidence tending to connect the defendant with the commission of the offense; and the court nowhere in its main charge makes such requirement of the jury. That this charge also instructs the jury to consider the-corroborative evidence in satisfying their minds as to whether the prosecutrix is-worthy of credit. It instructs the jury that they might apply the corroborative evidence to her and not to the defendant, whereas-the law requires that the corroborative evidence should relate to the guilt of defendant and not to her testimony to show' whether she is worthy of credit, and that it is further erroneous in that it leaves the jury free to consider the question of corroboration in connection with the testimony of prosecutrix,, as though her testimony could be considered in deciding upon necessary corroboration. This charge is erroneous. The court should-, have charged the jury that they must find the-testimony of the prosecutrix true, and in addition they must find there was evidence,, independent of her testimony, tending to connect the defendant with the commission, of the offense, if committed. The criterion, as-we understand our law of corroboration, is that there must be some fact, independent of her testimony, which tends to connect the-defendant with the offense committed. This charge is not in accord with the well-settled rule of jurisprudence of this state. See Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583; Lemmons v. State, 58 Tex. Cr. R. 269, 125 S. W. 400; Garlas v. State, 48 Tex. Cr. R. 451, 88 S. W. 345. This is a sufficient number of cases to cite on this proposition.

Complaint is made that the court erred in admitting certain letters purporting to have been signed by appellant. We are of opinion under the attendant circumstances, that these letters were admissible for what they were worth, but they did not afford any corroboration of the prosecutrix, as shown by this record. There is no evidence, outside of hers, to show these letters ever came from the defendant. Carrens v. State, 77 Ark. 16, 91 S. W. 30; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Bishop v. State, 151 S. W. 821. In this connection the court charged the jury: “If you shall find that Cora Tucker testified that she received from the defendant certain letters, which have been introduced in evidence, and that the defendant wrote them, but if you shall further find that there are no other facts and circumstances in evidence which shows that defendant did write the letters, except the testimony of Cora Tucker, then you aré charged that the letters would not be sufficient within themselves and alone to corroborate, if they do corroborate, her testimony; and, unless you find there are other facts and circumstances in evidence outside of her testimony and the letters which tend to connect the defendant with the commission of the offense charged, you will acquit. Or if you shall find that there are facts and circumstances in evidence which show that the defendant wrote the letters introduced in evidence, and if you find such letters do corroborate Cora Tucker’s testimony, you may consider them for that purpose. If, under the foregoing instructions, you shall not consider the letters as corroborative evidence, yet if you find, beyond a reasonable doubt, that the defendant, by promise to marry, did seduce and have carnal knowledge of Cora Tucker, as charged, and that the testimony of Cora Tucker has been corroborated by other evidence, outside of the letters, which tends to connect the defendant with the commission of the offense, you will convict.”

Various objections are urged to these charges. To the first clause of the charge it is urged it is on the weight of the evidence, permitted the jury to judge for themselves whether they would consider the letters as corroborative, and because the court told the jury that said letters would not be sufficient “within themselves and alone to corroborate, if they do corroborate, her testimony,” when in truth and in fact, if they had not been corroborated by some other witness than that of prosecutrix, they could not be considered at all as corroborative of the testimony of prosecutrix, because an accomplice cannot corroborate herself. It is contended, under this paragraph of the charge, the jury was in effect told that, though the letters were not identified by other evidence than that of Oora Tucker, yet they might link in the letters with other evidence in the case, so to speak, in determining the sufficiency of the corroboration. This paragraph assumes what prosecutrix testified about the letters was true. We are of opinion these criticisms are correct.

To the second clause of the charge it is urged that the court assumes that Oora Tucker testified truthfully; is upon the weight of the evidence. It instructs the jury that they might consider certain facts testified by Oora Tucker against the defendant; that the court in said paragraph nowhere tells the jury that they could not consider the letters as corroborative evidence but left the jury to determine for themselves whether they regarded the letters as corroborative or not, thereby giving the jury the power to determine the competency of the evidence.

As to the third clause of the above-quoted charge it is urged that it is confusing, contradictory, uncertain, and on the weight of the evidence, and assumes the prosecutrix testified truthfully, etc., and that the court was in error in not informing the jury that they could not consider the letters at all as corroborating the testimony of the prosecutrix inasmuch as there was nothing in the record to corroborate her statement in regard to the letters. Appellant asked, in this connection, the following instruction: “The law requires that the prosecutrix, Miss Oora Tucker, must be corroborated by other testimony than her own and by such testimony as tends to connect the defendant with the commission of the offense with which he is charged, and, unless you find from the testimony, other than that of said Oora Tucker, that the defendant wrote her the letters introduced in evidence, then in such event the letters within themselves and alone would not furnish the corroboration which the law requires in order to warrant a. conviction of the defendant.” This was refused, and improperly so. The court should have pointedly told the jury that these letters could not be used as corroborative evidence of the testimony of the prosecutrix unless there was other evidence, independent of hers, tending to show that defendant wrote these letters. This record does not show corroboration of the prosecutrix, as we understand the record on this question. The charges given by the court were erroneous, and that requested by appellant was correct.

We have taken up these charges and thrown them together in a general way so as to inform the trial court that upon another trial the jury must be pointedly instructed that prosecutrix cannot be corroborated by her own statements in regard to these letters, and that, in order to show these letters in any way corroborative of her testimony, it must come from matters and things outside of her statement. Curry v. State, 151 S. W. 319; Bishop v. State, 151 S. W. 821; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Carrens v. State, 77 Ark. 16, 91 S. W. 30.

Appellant asked special instructions in substance that unless there is evidence outside of and independent of prosecutrix’s tending to connect the defendant with the alleged seduction or act of intercourse, as testified by her, on 18th of May, 1912, the jury should acquit. This was a pointed presentation of the matter, and, in our judgment, this charge should have been given. It is not the purpose of this opinion to go over the testimony in detail. The state’s case in brief was that made by prosecutrix to the effect that on 18th of May he asked to hug and kiss her, which she permitted, and in a few moments he requested final favors, which were granted. She says it was under the promise of marriage. At intervals of from one week to three or four weeks after that until September or October he went with her, amounting to about a half dozen times. We have examined the record with some degree of interest and care and fail to find any corroboration as to a promise of marriage from any source. This is not as strong a case, in-our judgment, as the Bishop Case, cited supra.

For the errors indicated, the judgment is reversed, and the cause is remanded.