Duncan v. State

16 S.W. 753, 30 Tex. Ct. App. 1, 1891 Tex. Crim. App. LEXIS 52

Opinion

WHITE, Presiding Judge.

Appellant was indicted, tried and convicted in Maverick County on the indictment charging him with the murder of one Levonia Homes, the said murder being alleged to have been committed on or about the 24th of February, 1889. There were three counts in the indictmenb—one charging a murder by striking her with a gun, another by striking her with some blunt instrument or weapon to the grand jurors unknown, and the last by assaulting her in some way and manner and by some means and with weapons to the grand jurors unknown. The defendant was found guilty of murder in the first degree and his punishment assessed at death.

Defendant’s motion for a new trial in the lower court contains in brief the matters which he assigns as error upon his appeal, and the grounds of said motion are as follows: “First, because the court erred in not granting defendant’s motion for a continuance, the absent witnesses being material and the probable truth of their testimony as well as the materiality being shown upon the trial of this cause; second, because the court erred in refusing special charge asked by the defendant; third, because the verdict is not supported by the evidence, but is contrary to same and should be set aside; fourth, because the verdict is contrary to the law.”

There were but two bills of exception reserved during the progress of the trial in the court below, one to the overruling of defendant’s motion for a continuance and the other to the refusal to give the special requested instruction asked in behalf of defendant.

In order to illustrate the points necessary to be determined with regard to the application for continuance and other issues involved, we will be compelled to give a brief summary of the salient features of the evidence as presented in the record.

It appears that there was a family by the name of ’Williamson who lived in San Saba County, with whom this defendant is shown to have been quite intimate. The family consisted of a mother, a widowed daughter some 28 or 30 years of age, a son some 20 or 22 years of age, and a daughter between 15 and 17 years of age. The widowed daughter’s name was Levonia Homes, and she was the subject of the murder involved in this case. The family was poor, having only a small tract of land, some household furniture, and a few head of cows and horses. The defendant seems to have gained the confidence of the old lady and she finally sold him her land and her other property. Just after this sale the defendant moved the family with his own wagon, just bought, and team from San Saba County in a westerly direction, it being stated that the family were being moved to Mexico. They started in his wagon from San Saba County the last of January, 1889. They left at night between the 15th and 20th of January. It is shown that the defendant was present and assisted them in packing the things into the wagon the night they left. About 9 o’ clock the next morning the defendant stopped at the blacksmith shop of witness Hawkins and said, “Mr. Hawkins, what have you done with your neighbors?” alluding to the Williamson family. Hawkins says: “ I answered, ' Dick, they left last night but they will be back within a month;’ to which the defendant replied, 'Ho, by G—d, they will never come back.’ ”

A few days after the Williamson family started the defendant left San Saba County and was frequently seen on the road afterward in company with the family traveling along in the direction of Eagle Pass. On the 6th day of February the defendant came to a Ranger camp, Camp Wood, in Edwards County, and took dinner with the Rangers and said that he was going to Piedras Negras, Mexico, after his sister; that he had a family by the name of Jones whom he was taking to Eagle Pass. At that time there was a man by the name of Landers with the party who seemed to be a friend of the. defendant, and also to be traveling with the party, and from there on down to the neighborhood of the Rio Grande these parties were seen together, Landers being with them. On the 11th of February Leífering, a witness for the State, saw these parties, the defendant being one of them, two miles on the other side of Darling Station and about twenty-eight miles from Eagle Pass. The State’s witness Wipff says he lives at Upson, in Maverick County, eighteen or nineteen miles from Eagle Pass. He describes the parties in the wagon just as the other witnesses do, and he says he saw the wagon going in the direction of Eagle Pass some days before he heard that some dead bodies were found in the Rio Grande. This is the last time the parties are seen together prior to the finding of the dead bodies in the river, but this witness does not fix the date. Between this witness’ house and Eagle Pass there was a fork in the road, one of the forks being an old deserted dim road, which goes toward the river near the coal mine to an old ranch, bat there is no ford where this dim road reaches the river. The defendant was seen in the town of Eagle Pass by the witness Hartenstein between the 14th and 20th of February. His whereabouts between the 11th and 14th of February is unknown by any of State witnesses, or other citizens of Eagle Pass, conceding that Hartenstein saw him as early as the 14th. The witness John McDaniel says he saw the defendant in the town of Eagle Pass on the 15th of February. If that was the date he first arrived in Eagle Pass and the time at which Hartenstein saw him there (between the 14th and 20th), his whereabouts for five days, between the 11th and 16th, is unknown by any of the State’s witnesses, nor is he seen by anybody at or near Eagle Pass during that time save his brother and his father, who testify that he arrived at Berndt’s ranch across the Rio Grande in Mexico, where they were stopping, on the 12th of February, 1889, and remained with them every night at Berndt’s ranch until the 19th of February, and Tap Duncan testified that during that time he was not separated from the defendant at any one time for more than two hours.

On the 22d of February the defendant, his brother Tap Duncan, and his father E. A. Duncan, and Shad White, who was a witness for the State, testify that they crossed the household property belonging to Mrs. Crarey, a sister of defendant, over the Rio Grande to Eagle Pass. These things belonging to Mrs. Crarey were loaded in an old wagon by E. A. Duncan, father of the defendant, and this wagon was the one in which they (E. A. and Tap Duncan) traveled back to San Saba County, they leaving Eagle Pass late on the evening of the 22d. The new wagon in which the defendant had moved the Williamson family out to the Rio Grande from San Saba County was not seen by Tap Duncan or E. A. Duncan until they were arrested near Barksdale, in Edwards County, Texas, where defendant and Landers had also been arrested by the Rangers. The witnesses Aten and Hughes, who- were Rangers, say that they arrested these parties in Edwards County, one hundred and twenty-five miles from Eagle Pass, on the 1st of March, on a suspicion of smuggling goods across the Rio Grande. Speaking of this arrest Hughes says: “We asked the defendant who the family was he had when they passed our camp in February and represented that they were named Jones. The defendant said the old lady he had with him was his (defendant’s) mother, and that the two young ladies were his (defendant’s) sisters; that the younger was married to the young man in the wagon with them the first day they passed our camp, and his name was Thompson; that his brother-in-law Thompson, the young man alluded to, had a ■ cow-stealing case against him in Tom. Green County and he (the defendant) was moving him out of the country, and asked if we blamed him for that. The defendant said he had left the old lady (his mother) and his sister (Mrs. Thompson) and her husband down near Eagle Pass, and that his other sister, Mrs. Crarey, had taken the train and gone home.” This was the account the defendant gave of the missing family on his arrest the 1st of March, before these parties got together and were arrested by the Rangers (that is, the defendant, Tap Duncan, and his father E. A. Duncan, and Landers, with the two wagons), in Edwards County.

The witness Louis Charles testifies that on the last of February, 1889, he bought a large quilt from the defendant for six bushels of corn, and the defendant and the other man (by testimony shown to be Landers) offered to sell him a bed, gun, and feather mattress. They asked him $20 for the feather bed. They had six or seven quilts in the wagon. He describes the wagon as a new one and says the old one passed his house two or three days afterward.

The testimony shows that the dead bodies of the Williamson family were taken out of the Rio Grande, the first on the 26th of February, which was that of an old lady; and the second, a man and a woman, on the 28th of February, and on the first day of March the fourth body, which was the body of a woman. Each of these bodies had tied to them rocks weighing from forty to fifty pounds, and were found near the coal mines above mentioned in Maverick County. The skulls of all the dead bodies had been crushed by striking them with some blunt instrument. These bodies were, after the inquest held over them, buried in the cemetery in Eagle Pass. Subsequently the bodies of Levonia Homes and Ben Williamson were exhumed and examined and fully identified by several of their neighbors from San Saba County. This sufficiently states the facts necessary to a proper understanding of the merits involved in defendant’s application for a continuance and other issues in the case.

Defendant states in his application for continuance that he expected to prove by the absent witness S. B. Howard, sheriff of San Saba County, that he (defendant) was a man of good character in the county of San Saba, where he was raised, and also that as soon as the defendant learned that there was a charge against him for this murder he voluntarily came in and surrendered to the sheriff. This evidence was not material in the light of the other testimony in the case. Defendant did not put his character as to his being a peaceable and quiet citizen in issue. There were a number of his neighbors-from San Saba County who were present and testified at the trial by whom he could have proved his good character, if such was his reputation in San Saba County, as well as by the sheriff, and they were not asked as to his character. It was proved by the State’s witness George Baker that defendant did voluntarily surrender to the sheriff of San Saba County, and this fact was not in issue or denied by the State.

By the witnesses Joe Bryan, Jim Miller, and Hat Johnson, defendant’s application states that he could prove that on or about the 21st of February, 1889, they saw the defendant in the western portion of Edwards County on the road to Junction City, and they had all been well acquainted with defendant for many years; that the next day they saw Mrs. Williamson, her daughter Mrs. Homes, Ben Williamson, and Beulah Williamson in camp some six or seven miles west of Spofford Junction, in Kinney County; that they were all well acquainted with the Williamson family; that Mrs. Williamson told them that she had sold her place in San Saba County and was going to Mexico; that she was looking for a man who lived across the river some twenty miles above Eagle Pass to bring a wagon that day and take her over there; that she showed witness a lot of money that she said she got for her place.

This proposed testimony is positively contradicted in so far as defendant is concerned by defendant’s own witnesses, his father and his brother, E. A. Duncan and Tap Duncan, who testify, as we have above seen, that on the 21st of February he was at Berndt’s ranch in Mexico with them, and that he did not leave Eagle Pass' until the evening of the 22d. So far as their statement as to seeing Mrs. Williamson and her family at that time is concerned we think it is equally as improbable and untrue. The court did not err in overruling defendant’s application for a continuance.

The court did not err in refusing defendant’s special requested instruction as shown by his bill of exceptions Ho. 2. This instruction is in the following language: “Defendant by his attorney asks the court to charge the jury that the declarations of the defendant put in evidence by the State are to be taken as true unless inconsistent in themselves or contradicted by other evidence, and the State is bound thereby.”

This instruction abstractly considered is doubtless a sound proposition in law. The court, however, is not bound to charge because requested every abstract proposition of law that may be correct.' In this case the court has charged the law applicable to the facts in the case and has applied the law to the facts legitimately in the case, as we think correctly and fully, and there was no error in refusing to give the special requested instruction.

But it is contended the evidence is insufficient to support the verdict and judgment; that no motive was shown for the perpetration of the deed on the part of this defendant, and that the circumstances as developed by the evidence are too inconclusive as to his guilt. We do not know with certainty what the motives were that prompted this horrible murder of a whole family. It might have been the money the old lady had received for her property. We do believe, however, that the evidence is sufficiently conclusive that this defendant was a guilty party to the murder. He has attempted to show that none of the property of the Williamson family was ever found in his possession after he separated from them, and he has been very particular in showing that a large number of quilts were brought off from his mother’s house on the night he went to move the Williamson family from San Saba County. He was also very particular in showing that the household furniture of his sister, Mrs. Crarey, was brought back from Mexico, but that property it will be remembered went in the wagon that conveyed his father and brother back to San Saba County, and none of that property went into the wagon in which he moved the Williamson family to Mexico. His brother Tap Duncan testified that the two wagons were never together until they were arrested on the 1st of March by the Bangers in Edwards County. The evidence of Charles shows that several days prior to this last date, and before these wagons had gotten together, defendant offered to sell him among other things a feather bed, for which he asked him $20, and a mattress. Where this defendant got the feather bed and mattress has never been accounted for by any witness in the case. He did not take them from his mother’s house on the night he started with so many quilts to move the Williamson family to the Rio Grande. It is true that they are not shown to have been the property of the Williamson family, but the defendant has been so particular in accounting for all the other property in his possession that it . strikes us as remarkably strange that he could not account for these articles.

We are of the opinion, after a most mature consideration of the evidence in this case, that it is entirely satisfactory and most conclusive that this defendant and those acting with him are the parties who so foully and inhumanly exterminated this whole family. If guilty there can be no question as to the character of the crime or degree of punishment deserved. The jury in the court below have said that the defendant deserves death for his crime. We are not disposed to interfere with the judgment, and ft is therefore in all things affirmed.

Affirmed.

Davidson, J., being disqualified, did not sit in this case.