Burgess v. State

181 S.W. 465, 78 Tex. Crim. 469, 1915 Tex. Crim. App. LEXIS 290

• Court: Court of Criminal Appeals of Texas
• Decided: November 17, 1915
• Docket: No. 3755.
• Status: Published

Opinions

PBENDEBGAST, PeesidiNg Judge.

Appellant was convicted of murder of his wife, and assessed the death penalty.

But a brief statement of the case is necessary. The material facts were proven hy uneontroverted testimony of various witnesses.

Appellant was a drinking man and had been for some years. His business was that of a traveling tailor, taking orders for men’s ready-made clothing. He became acquainted with his wife while hoarding with her parents, and after only a short acquaintance they married about six years before he killed her. After marrying, they left her parents and lived from time to time at first one place and then another. They kept house during their whole married life but a very short time; it seems, because of his traveling, they boarded generally when living together. Because of his cruel treatment of his wife she repeatedly abandoned him and went to and stayed with her parents. She had one child, a little girl, horn just nine months after their marriage. She was about five years of age at the time her mother was killed. At one time his wife (deceased) procured a divorce from him, evidently because of his cruel treatment of her. Bepeatedly, when she would abandon him because of his treatment of her, he would follow her up and by promises of future good treatment would induce her to return to and live with him for a while. And he repeatedly, after she had procured the divorce from him, besought her to marry him again, and by his promises induced her to remarry him, which she did about the first of October prior to the time he killed her the latter part of the following January. Soon after their remarriage his cruel treatment of her was renewed. It became so unbearable that she again abandoned him and brought a second suit against him for divorce. This was pending at the time he killed her. • After this separation he again sought a reconciliation with her from time to time, and for that purpose, it seems, he repeatedly sought to meet her at various places, and perhaps succeeded in one or two instances, but she persistently refused to again live with him, and she and her little daughter lived with her parents at the time he killed her. Her father at the time was a' paralytic, confined to his bed and utterly helpless. The deceased was in the habit of arising early in the morning and preparing an early breakfast for her brother, so that he could early go to his work, and after he would complete his breakfast she would then prepare breakfast for the others. She was killed early one morning.

Her mother, Mrs. W. T. Bigsby, testified that she had more than one time beard bim threaten to kill bis wife. Sbe testified: “that he threatened to kill her in October, the first of October, 1914, upstairs in their room. . . . That Mr. Burgess said, ‘I could kick you. half to death. I would love to kick you to death, and then hang for it. I don’t mind being hung. What is death to me ? I don’t care.’ That that was the last time she heard him threaten to take her life before the morning he killed her, because that was the last time that he was in the house.”

She further testified: “That her daughter’s (deceased’s) bedroom adjoins her bedroom On one side, and the dining room just around the corner. That her attention was attracted on the morning of the killing by hearing Mr. Burgess’ voice muttering, and her daughter begging him not to kill hen. That she could tell that her daughter was in the kitchen, and she said, ‘Oh, Mr. Burgess, don’t do that; don’t shoot me; please don’t kill me.’ That when she heard that she opened the door leading from that room to the dining room and saw him. . . . That when she opened the door she saw Mr. B. H. Burgess and her daughter. That her daughter was neaarer to her, and was j*ust coming from the kitchen to the dining room, backing up, and Burgess was following her. . . . That he had a pistol in his hand and was pointing it at May Burgess (deceased). That when she opened the door she said: ‘Oh! my Lord, what is the matter ?’ and that Burgess replied, ‘It’s me.’ That she saw the first shot, and that her daughter did not have her back to him then but was facing him. That the first shot struck her daughter somewhere in the bowels. That when the first shot was fired May Burgess did not have hold of anything; that when she was shot the first time she begged him after that and kept trying to go to her father’s room. That it was about a yard and a half or two yards from the place where she was shot the first time to the place where she was shot the second time, and it was about two steps further to where she was shot the third time. That at the time her daughter received the third shot she had her back to him (appellant) and was trying to get to her father’s door, and was right at it. That before she was shot the third time she said: ‘Oh! Mr. Burgess, you have killed me; don’t shoot me any more. Please don’t kill me for my baby’s sake.’ That Burgess said: ‘No, you are not killed. I will kill you,’ and laughed, and then shot her again in the back.” She further testified that just after shooting his wife appellant left, went out the kitchen door, around the house, out into the street, going away from the scene. That at once after appellant left, her daughter (deceased) said to her: “Oh! mamma, Mr. Burgess has killed me; pray for me; I want you and papa to pray for me”: and she said: “Oh! papa, I know you would help me if you could.” And she further testified that deceased then told her that the wind was blowing, and she (deceased) closed the door, and she turned to put up her dishes, and he (appellant) opened the door; that she turned around, and he had his hand behind him, and he said: “You won’t live with me”; that she said: “I have tried so many times, and you have promised me if I would try you one more time you would (not) treat me so cruelly, yon would not worry me no more, and you promised yon would pay for my divorce”; that she said: “Don’t do that, Mr. Burgess”; and he commenced pointing a pistol at her, saying the second time: “You won’t live with me?” and she said: “No, I can not live with you.”

At most, the evidence, without rediting it, barely suggested that appellant, at the time of the killing, possibly might have been insane from the long use of intoxicating liquor, but there was no positive testimony that he was insane from that cause, or any other, at the time he killed his wife. The bare suggestion of insanity might be inferred solely from the fact that he had been a drinking man and a few isolated acts of his conduct occurring long before the killing. However, the court charged in his favor on insanity in a correct charge, telling the jury in effect that, if they believed from the evidence he was insane at the time of the killing, to acquit him, and state in their verdict that they did so on that ground. No exception was taken to the court’s charge. Appellant requested one special charge to the effect that, if at the time of committing the offense he had become insane from the long continued and recent use of intoxicating liquor, or from some other cause, to acquit him. We think the court committed no error in refusing this charge in view of the charge of the court. For by the court’s charge they were plainly told that, if they believed he was insane to acquit him, which would embrace insanity for any cause whatsoever. No doubt, under the court’s charge, if the jury had believed that he was insane from the use of intoxicating liquor or from any other cause, they would unquestionably have acquitted him.

Appellant’s next complaint is to the action of the court in permitting the bloody clothes .of the deceased to be exhibited before the jury. Dr. Gober was the first witness for the State, and he testified to the location of the wounds upon the body of the deceased, and for that purpose he alone was permitted to adjust deceased’s garments to his body so as to show the exact location of the wounds, and the court so states, in his qualification of appellant’s bill, and further that it was admitted for that purpose. There is no intimation in the bill, or otherwise in the record herein, that the bloody garments were made ¡use of by the State in any argument to the jury whatever, or otherwise than the mere fact, as stated by the court, of identifying thereby the wounds inflicted by appellant upon the deceased. Even the doctors themselves differed as to whether some of the wounds entered from the front or rear of the body. From the State’s viewpoint the clothes were admissible, and we think, under the authorities, no error is presented on this question that would authorize this court to reverse the ease. Branch’s Crim. Law, sec. 436.

In his next bill he claims the court erred in admitting the dying declaration of the deceased on two grounds: (1) because it was not signed, nor did it purport to be signed, by the deceased; (2) that it was not voluntary but made in respoflse to solicitations propounded to her. We have carefully considered the evidence on this point, and, in our opinion, the proof is clear, forcible and amply sufficient under the statute (art. 808, C. C. P.) to not only authorize, but to- require the admission of said statement in evidence. See Judge White’s sections under said statute for a collation of some of the authorities. The judge in his qualification to this bill states that the witness Synnott testified: “The deceased was in a weakened condition, and that he signed her name to the written statement, and she touched the pen. The written statement, which is a part of the record, speaks for itself.” This statement is nowhere in the record — either bill or statement of facts. The testimony of Synnott shows that he read the written statement over to the deceased twice, and that in effect she said it was correct, and he says that she was too weak, he thought, and in a dying condition, so that she was unable to write her whole name, and that he had her to touch the pen while he wrote it. His testimony and that of all the other witnesses on the subject, without question, we think, disproves the other ground of the bill.

The only other question is, appellant claims he was entitled to a new trial because of newly discovered testimony, and he attaches the affidavit of some persons, which he claims is sufficient to show that.

The record shows that he killed deceased on January 27, 1915, and was arrested therefor immediately afterwards. The grand jury indicted him February 12, 1915. The case was not tried until May 1st thereafter. The record shows that one of his brothers attended the trial as a witness but did not testify. One affidavit of claimed newly discovered evidence is that of Woods Anderson, which is solely to the effect that he had known appellant for four years while he resided in Clifton and Hico, Texas, and that, while he resided in those places, he was addicted to the excessive use of intoxicating liquor. This certainly could not be claimed to be newly discovered evidence. If true, appellant unquestionably knew it. Besides, the evidence as a whole shows that he was a drinking man, and that he got on sprees. The next affidavit is that of Dean Hunt. The record shows that Dean Hunt was a witness on this trial and testified therein. His affidavit of claimed newly discovered evidence is solely to the effect that on each occasion when he saw appellant take some kind of drugs that it was in the form of a little white powder, and immediately after taking it he would fall asleep in his chair, and on one occasion fell asleep on a table in the shop where he was working. That he did not know the name of the drug, but reaches his conclusion that it was a strong narcotic from its appearance and its immediate effect. His sole testimony on the trial on this point was that about a year before the homicide when talking to appellant one day appellant turned away from him, poured some white powder in his hand and took it. He did not know what the powder was. He did not describe what effect it had, nor did he tell anything else that he now claims'to disclose in his affidavit. We can not see how it is possible, if any or all of this is true, that appellant did not know it at and before his trial, and that Dean knew this, and that Dean knew what he swore in this affidavit before and at the time he testified. He bad several witnesses from tbe location fixed by Dean to testify in his behalf, and none of them detailed any such character of statement as Hunt now for the first time discloses in his affidavit. The next affidavit is that of Dr. Harlan, a resident of Beaumont, where this killing and trial occurred, and his affidavit merely states that, in his opinion, the excessive use of intoxicating liquors, combined with the habitual use of narcotic drugs, will, and in many instances it has, produced such a degree of insanity to prevent the user from knowing and understanding' the nature of his acts. This could not be newly discovered evidence. Perhaps any other physician would have testified to the same thing as an expert. The appellant’s attorneys who tried the ease below also attached their affidavits, wherein they state in effect that they used diligence to ascertain the appellant’s mental condition, but they nowhere state what that diligence was or what diligence they used other than their mere conclusion. The only other affidavit is that which purports to be the affidavit of Frank Fenwick Young, a Louisiana doctor. The effect of his affidavit is that about ten years before this homicide the appellant was in his sanitarium in Louisiana for treatment for inebriety, and that he treated him and soon after discharged him, much better, but, he thinks, not entirely cured, and he gives his opinion from what has been told him about the killing and appellant’s condition at the time, without stating what that is, that he was of the opinion that he was insane at the time of the killing. Surely, this can not be claimed to be newly discovered testimony. If appellant had ever been treated by this doctor for inebriety and discharged as much better, he certainly knew it. In our opinion, appellant’s motion on the ground of newly discovered evidence is wholly without merit and ■ did not authorize the lower court to grant a rehearing thereon nor this court in reversing because thereof. Besides, the judgment of the court overruling his motion shows that the court after hearing it and the evidence thereon overruled it. What that evidence is which the court heard is in no way disclosed to this court.

The judgment is affirmed.

Affirmed.