Appellant was convicted of murder in the
second degree, his punishment being assessed at ten years confinement in the penitentiary.
The case originated in Newton County and was transferred on change of venue to Jasper County, where it was tried. It may be stated this is a companion case to Harvey Davis v. State, reported in 76 Tex.Crim. Rep., 172 S.W. Rep., 978. The two convictions grew out of the same transaction. It is deemed unnecessary to go into a detailed statement of the voluminous testimony. It is sufficient to state, it substantially shows that Dock Hughes, Tom Hughes, Jr., Harvey Davis and appellant got together with the understanding that they were going to whip a negro, and it may also be inferred that they may have gone far enough in their agreement to include more than one negro. In pursuance of this understanding, they went together, Harvey Davis being on horseback and the other three in a buggy; at least the four left in company and went to two or three different places and whipped two or three negroes. About midnight they concluded, at the instigation of Dock Hughes, to go to the residence of Joe Kellum and give him a whipping. The reason for this is stated to be that it would make him raise a better crop than if he did not have the whipping. They reached Kellum's house somewhere between 12 and 1 o'clock at night. Dock Hughes sought entrance at the door, but did not obtain it. Tom Hughes, Jr., a relative of Dock Hughes, and Dock Hughes finally entered the house by breaking open the door. Kellum declined to let them enter the house. He was sleeping on one bed and his wife on another in the same room. The contention of the State is, that appellant went around to another door to prevent Kellum escaping from that direction, but it seems he did not remain there but came away. At any rate, Dock Hughes and Tom Hughes entered the room. Grace Kellum, the deceased, expostulated with them for coming in her room, that she was dressed only in her night clothing, and asked them to leave. Grace Kellum had gone from her bed over to her husband's bed and was sitting on it. Her husband, in the meantime, had obtained his gun, and secreted himself at the foot of the bed out of sight. Tom Hughes lighted a match. This went out and he called for more matches, but deceased informed him they had none. He found a lamp and undertook to light it, but it contained no oil. About that time the shooting began. Joe Kellum, a State's witness, testified that Dock Hughes fired first. Tom Hughes, who turned State's evidence, testified that Joe Kellum fired first. Joe Kellum's shot took effect in Dock Hughes' body, from which he died. Dock Hughes shot Grace Kellum twice in the right breast. When Tom Hughes discovered that Dock Hughes had been shot, he picked up Dock's gun and walked to where the woman was for the purpose of shooting her again. He found her in a dying condition, making a noise indicating what we would call the "death rattle." When he did this appellant took the gun from him and prevented further shooting. She died shortly afterwards. The survivors were indicted for killing Grace Kellum.
The theory of the State was that this was a conspiracy between the
parties to whip negroes, and among them Joe Kellum, and that being true, that all the acts and subsequent events brought about by the four implicated made each responsible for everything that occurred, even to the killing of Grace Kellum. The appellant combated this theory from every standpoint that would suggest itself to counsel. They contend, first, that when Dock and Tom Hughes went into the house, that he, appellant, would be bound no further than the agreement between them, if such an agreement was made as contended by the State, to get Joe Kellum out and give him a whipping. That this did not contemplate a killing of Joe Kellum. The writer is disposed to agree with that theory of the case, but he may be in error about that under the recent case of Serrato v. State, an opinion by Judge Harper, coincided in by Judge Prendergast. In that case I entered my dissent. But be that as it may, perhaps the court would have been justified in submitting the case upon the theory that as they went there for the purpose of whipping Joe Kellum, had they killed Joe Kellum appellant might have been responsible, he being there about the house at the time of such trouble. But Joe Kellum was not killed; he was not even shot at. Tom Hughes, the State's witness, who turned State's evidence, testified that the woman was shot by Dock Hughes on purpose. He shot her twice while she was sitting on the bed, and as I understand the record Joe Kellum was not shot at and was not even seen by the parties after they entered the house. That he fired from behind the foot of the bed and killed Dock Hughes, and Dock Hughes then killed Joe Kellum's wife. There is some evidence that Grace threatened the life of Dock and Tom Hughes after they entered the room. There is no evidence in this record, nor intimation from any source — State or defendant — that Grace Kellum was included in any of their agreements, or that she was even thought of when they went to Joe Kellum's house. They went there to whip Joe Kellum. They did not seem to have known Grace Kellum was at home. If appellant and Harvey Davis and the two Hughes agreed to whip Joe Kellum, under the Serrato case they possibly might be guilty of anything that followed, so far as Joe Kellum was concerned. But this rule certainly ought not to apply to Grace Kellum and her tragic ending, so far as appellant is concerned. He knew nothing of it until after the killing. It was not within the contemplation of any of the parties at the time they went to the house of Joe Kellum.
The court charged the jury on the law of principals in a general way, and then gave this charge: "If you believe from the evidence beyond a reasonable doubt that the defendant, Walter Buckley, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence, that the defendant, Walter Buckley, did not aid, or encourage the said Dock Hughes, Harvey Davis, or Tom Hughes, Jr., or either of them, to kill Joe Kellum or Grace Kellum, by any word or act or gesture, and did
not know the unlawful intention, if any, of the said Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead in its natural or probable consequences to the killing of Joe Kellum or Grace Kellum, or if you have a reasonable doubt about this, then you will find the defendant, Walter Buckley, not guilty." Exception was reserved to this charge both before it was read to the jury and afterwards in motion for new trial, and reserved in a bill of exceptions independent of the original exceptions, among other things, that it placed the burden of proof on defendant, changed the reasonable doubt, and charged affirmatively that the jury must believe he did not aid or encourage the others in killing either Joe Kellum or Grace Kellum, before they could acquit him of killing Grace Kellum.
Again, the court charged the jury: "If you believe from the evidence beyond a reasonable doubt that Walter Buckley, either alone or acting as a principal with Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, as that term has heretofore been defined to you, in the County of Newton, and State of Texas, on or about the 10th day of August, A.D.
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Appellant was convicted of murder in the
second degree, his punishment being assessed at ten years confinement in the penitentiary.
The case originated in Newton County and was transferred on change of venue to Jasper County, where it was tried. It may be stated this is a companion case to Harvey Davis v. State, reported in 76 Tex.Crim. Rep., 172 S.W. Rep., 978. The two convictions grew out of the same transaction. It is deemed unnecessary to go into a detailed statement of the voluminous testimony. It is sufficient to state, it substantially shows that Dock Hughes, Tom Hughes, Jr., Harvey Davis and appellant got together with the understanding that they were going to whip a negro, and it may also be inferred that they may have gone far enough in their agreement to include more than one negro. In pursuance of this understanding, they went together, Harvey Davis being on horseback and the other three in a buggy; at least the four left in company and went to two or three different places and whipped two or three negroes. About midnight they concluded, at the instigation of Dock Hughes, to go to the residence of Joe Kellum and give him a whipping. The reason for this is stated to be that it would make him raise a better crop than if he did not have the whipping. They reached Kellum's house somewhere between 12 and 1 o'clock at night. Dock Hughes sought entrance at the door, but did not obtain it. Tom Hughes, Jr., a relative of Dock Hughes, and Dock Hughes finally entered the house by breaking open the door. Kellum declined to let them enter the house. He was sleeping on one bed and his wife on another in the same room. The contention of the State is, that appellant went around to another door to prevent Kellum escaping from that direction, but it seems he did not remain there but came away. At any rate, Dock Hughes and Tom Hughes entered the room. Grace Kellum, the deceased, expostulated with them for coming in her room, that she was dressed only in her night clothing, and asked them to leave. Grace Kellum had gone from her bed over to her husband's bed and was sitting on it. Her husband, in the meantime, had obtained his gun, and secreted himself at the foot of the bed out of sight. Tom Hughes lighted a match. This went out and he called for more matches, but deceased informed him they had none. He found a lamp and undertook to light it, but it contained no oil. About that time the shooting began. Joe Kellum, a State's witness, testified that Dock Hughes fired first. Tom Hughes, who turned State's evidence, testified that Joe Kellum fired first. Joe Kellum's shot took effect in Dock Hughes' body, from which he died. Dock Hughes shot Grace Kellum twice in the right breast. When Tom Hughes discovered that Dock Hughes had been shot, he picked up Dock's gun and walked to where the woman was for the purpose of shooting her again. He found her in a dying condition, making a noise indicating what we would call the "death rattle." When he did this appellant took the gun from him and prevented further shooting. She died shortly afterwards. The survivors were indicted for killing Grace Kellum.
The theory of the State was that this was a conspiracy between the
parties to whip negroes, and among them Joe Kellum, and that being true, that all the acts and subsequent events brought about by the four implicated made each responsible for everything that occurred, even to the killing of Grace Kellum. The appellant combated this theory from every standpoint that would suggest itself to counsel. They contend, first, that when Dock and Tom Hughes went into the house, that he, appellant, would be bound no further than the agreement between them, if such an agreement was made as contended by the State, to get Joe Kellum out and give him a whipping. That this did not contemplate a killing of Joe Kellum. The writer is disposed to agree with that theory of the case, but he may be in error about that under the recent case of Serrato v. State, an opinion by Judge Harper, coincided in by Judge Prendergast. In that case I entered my dissent. But be that as it may, perhaps the court would have been justified in submitting the case upon the theory that as they went there for the purpose of whipping Joe Kellum, had they killed Joe Kellum appellant might have been responsible, he being there about the house at the time of such trouble. But Joe Kellum was not killed; he was not even shot at. Tom Hughes, the State's witness, who turned State's evidence, testified that the woman was shot by Dock Hughes on purpose. He shot her twice while she was sitting on the bed, and as I understand the record Joe Kellum was not shot at and was not even seen by the parties after they entered the house. That he fired from behind the foot of the bed and killed Dock Hughes, and Dock Hughes then killed Joe Kellum's wife. There is some evidence that Grace threatened the life of Dock and Tom Hughes after they entered the room. There is no evidence in this record, nor intimation from any source — State or defendant — that Grace Kellum was included in any of their agreements, or that she was even thought of when they went to Joe Kellum's house. They went there to whip Joe Kellum. They did not seem to have known Grace Kellum was at home. If appellant and Harvey Davis and the two Hughes agreed to whip Joe Kellum, under the Serrato case they possibly might be guilty of anything that followed, so far as Joe Kellum was concerned. But this rule certainly ought not to apply to Grace Kellum and her tragic ending, so far as appellant is concerned. He knew nothing of it until after the killing. It was not within the contemplation of any of the parties at the time they went to the house of Joe Kellum.
The court charged the jury on the law of principals in a general way, and then gave this charge: "If you believe from the evidence beyond a reasonable doubt that the defendant, Walter Buckley, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence, that the defendant, Walter Buckley, did not aid, or encourage the said Dock Hughes, Harvey Davis, or Tom Hughes, Jr., or either of them, to kill Joe Kellum or Grace Kellum, by any word or act or gesture, and did
not know the unlawful intention, if any, of the said Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead in its natural or probable consequences to the killing of Joe Kellum or Grace Kellum, or if you have a reasonable doubt about this, then you will find the defendant, Walter Buckley, not guilty." Exception was reserved to this charge both before it was read to the jury and afterwards in motion for new trial, and reserved in a bill of exceptions independent of the original exceptions, among other things, that it placed the burden of proof on defendant, changed the reasonable doubt, and charged affirmatively that the jury must believe he did not aid or encourage the others in killing either Joe Kellum or Grace Kellum, before they could acquit him of killing Grace Kellum.
Again, the court charged the jury: "If you believe from the evidence beyond a reasonable doubt that Walter Buckley, either alone or acting as a principal with Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, as that term has heretofore been defined to you, in the County of Newton, and State of Texas, on or about the 10th day of August, A.D. 1914, with a deadly weapon, did shoot and thereby kill Grace Kellum by mistake or accident, and at the time of the killing it was his intention, either alone or acting as principal with Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, to kill Joe Kellum, and you further believe beyond a reasonable doubt that said killing was committed with malice aforethought, then you will find the defendant, Walter Buckley, guilty of murder." Exception was reserved also to this charge and counter charges asked. These matters are properly presented without going into a detailed statement. We are of opinion that these charges were not correct. The burden of proof is on the State and not the defendant. The defendant does not have to prove that he did not aid or encourage the killing. The State must prove that he did, and again the court coupled the killing of Joe Kellum, which may have possibly been within the terms of their agreement to whip him if he resisted, with the killing of Grace Kellum; it coupled Joe Kellum with Grace Kellum, and the jury is charged that if these parties killed either they must find that appellant did not aid and encourage before they could acquit. The second charge wherein the court charged the jury with reference to a mistake or accident on the part of Dock Hughes and others in killing Grace Kellum, was not raised by the facts. Tom Hughes, Jr., who turned State's evidence, makes it apparent that Dock Hughes killed the woman, deliberately and intentionally firing two shots while she was sitting on the bed. There is no evidence from this witness, as I understand this record, that Dock Hughes shot at Joe Kellum. In fact, he seems not to have shot at him; he was hid behind the bed, Dock shot and killed the woman. There was no mistake or accident in this matter. The theory of mistake or accident is based upon the theory that he was shooting at Joe Kellum and by mistake or accident killed Grace Kellum. There is no evidence to sustain that proposition. The State's evidence excludes it.
If Joe Kellum had been killed appellant might be guilty of the homicide. But he certainly ought not to be held responsible for the act of Dock Hughes killing the woman sitting on the bed, either by mistake, accident or purposely, under the facts of this case, and the jury should have been so instructed. In other words, before appellant could be convicted in this case for the death of Grace Kellum, it ought to have been shown that she came within the terms of the agreement made between them. If after Dock Hughes got in the house he changed his mind about the matter, or concluded to kill this woman, appellant ought not to have been charged with that unless he in some way knew and acquiesced in it before the killing. The State's evidence excludes that. The subsequent ratification would not have made him responsible. The doctrine of ratification of crime does not obtain. That was expressly decided in Walker v. State, 29 Texas Crim. App., 621. In other words, to restate this case, as the law it seems ought to be enunciated, if when these parties started out that night to whip one or more negroes, and finally by distinct agreement among themselves said they would whip Joe Kellum and thus cause him to make a better crop, and they went to his house for that purpose, all being there at the house, in or about it, and around the yard, and Joe Kellum was killed under those circumstances, appellant would be brought within the terms of the homicide law, especially as announced in the Serrato case, supra, and might be punished for the act of Dock Hughes. But he would not be responsible for the independent act, and with which he was in no way connected, and not within the terms of the original agreement either directly or indirectly, in killing the woman. He ought not to be held responsible for that homicide, and the jury should have been told so plainly.
For the error in the charge of the court and failure of the court to submit the correct issues, this judgment is reversed and the cause remanded.
Reversed and remanded.