Appellant was prosecuted and convicted of the crime of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life.
That the person who killed Earl Mabry on the night in question was guilty of murder in the first degree there can be no question. The question presented by this record is, was appellant one of the participants
in the crime? Roy Pringle on this trial says that appellant struck deceased in the back of the head with an iron pin, and then cut his throat with a pocketknife. Deceased had been knocked in the head, and his throat had been cut, and some seventeen other wounds had been inflicted on him. Roy Pringle was an accomplice, admitting that he stabbed deceased several times, and the court so instructed the jury. The contention that there is no testimony corroborating the accomplice, tending to connect appellant with the crime, can not be sustained. A knife was found near the dead body. Sis Hamp positively identifies this knife as the knife of appellant. This tended very strongly to connect the appellant with the crime, and is sufficient corroboration of the accomplice in and of itself to sustain the conviction. However, it may be stated that there are many other circumstances in the record corroborative of the accomplice, tending to connect the appellant with the offense. The contention that someone other than the accomplice must have seen appellant at or near the scene of the crime, and must have seen him strike the blows, to be sufficient as corroborative testimony, is not the law. If the State had such testimony, it would not need the testimony of the accomplice. When the deceased was found dead near the railroad dump, his throat cut from ear to ear, and a knife found by his side that is identified as the knife of appellant, the corroboration is sufficient. It is true that appellant assails the testimony of Roy Pringle and Sis Hamp. Witnesses swear that their reputation for truth and veracity is bad, and it is sought to impeach them by proving contradictory statements, yet all this was for the jury, and we suppose it was as ably argued in the trial of the case as it is here presented, yet the jury finds appellant guilty.
Appellant presents a strong alibi. The witnesses tie their memory to circumstances that would seem to render the defense indisputable, yet the State introduces an equal or greater number of witnesses who testify as positively to facts that would render the alibi untrue. This was a question for the determination of the jury, and the court's charge on alibi is not subject to the criticisms contained in appellant's motion for new trial, for it is drawn in language frequently approved by this court. Hines v. State, 40 Tex.Crim. Rep.; Caldwell v. State, 28 Texas Crim. App., 566; Harris v. State, 31 Tex.Crim. Rep.; Stevens v. State, 42 Tex.Crim. Rep..
On Sunday morning, the 21st day of September, 1907, the body of a young man was found on the south side of the railroad dump on the west of Texas Pacific Railway bridge, on the road from Dallas to the cement plant, dragged into some high weeds. The skull was crushed in the back of the head; there were sixteen or seventeen knife wounds in the body, and the head had been nearly severed from the body, witnesses say only about two inches of skin at the back of the neck connected the head with the body. An iron coupling pin, bloody, was found near the body; a knife was also found, with the big blade open, the point being broken. A red leather grip was also found, and in this grip were certain letters, a time book, etc. To prove that the body was that of
Earl Mabry, the sister, who never saw the dead body, was permitted to testify that the letters found in the grip were written by herself and her mother to her brother Earl; that the writing in the time book was in her brother's hand writing; that the hat found near the dead body was her brother's hat; the watch found on the body was her brother's watch. The defendant objected to the introduction of the letters and the time book in evidence on various grounds, but as the identity of the deceased was an issue in the case, and the State was required to prove that the dead body was that of Earl Mabry, the letters and time book and other articles mentioned were admissible on the issue of identity of deceased. This question was specifically passed on in the case of Campbell v. State, 8 Texas Crim. App., 84, and the valise and contents held admissible on the question of identity of deceased. See also Wharton's Criminal Law, section 941, and cases there cited. However, it was improper for the prosecuting officer to state in his argument that the time book and certain items therein showed that the deceased was a hard working boy, and that said book showed the deceased had worked all the month of August and up to the 18th day of September, and that the book showed he had $40 in his possession. The time book was not admissible to show these facts, if it did so show, but was admissible only on the question of the identity of the deceased, and the objection to that portion of the argument of State's counsel should have been sustained. But is the error such an error as will call for a reversal of the case? The fact that deceased had on Saturday evening some $50 or $60 is amply proven by other witnesses, and there is no testimony that he did not have money on his person, so the amount of money he had was not an issue in the case. That he had, just before being killed, been at work near Mineola was amply proven by other witnesses, and that he came to Dallas Friday night was proven by defendant, by Charles Moore and Mrs. Wilky. Then, too, the issue in the case, as made by the testimony offered in behalf of appellant, was not whether the deceased had been murdered for the purpose of robbery, but that appellant was not the person who did the killing, — that he was at home at his father's Saturday and Saturday night, and could not have been the person who killed the deceased. That deceased had been foully murdered in a brutal way was shown by all the testimony adduced on the trial, and as the remarks of the prosecuting officer complained of above were not such as could or would cause the jury to find that appellant was the person who did the killing, nor had any influence in regard to that issue, the remarks do not present reversible error.
Gertrude Wilson was the twenty-sixth witness introduced by the State, and she testified: "In 1907 I remember about hearing of the dead body of a man being found over west of the Trinity river, and I heard about it Sunday evening after the killing, and the way I heard about it was by hearing them talk about it. I knew Frank McCue at that time. Oh, I hadn't known Frank McCue very long. I saw him at Beasley's several times and had heard him talk there and heard him talk at Risa Beasley's and several others, and heard him talk at Risa Beasley's
on the Saturday night before I heard of this killing the next Sunday evening. I am acquainted with Frank McCue's voice. I heard some parties talking that Saturday night upstairs in Risa Beasley's room, and I taken one of the voices to be Frank McCue's." It will be recalled that the defense of the defendant was an alibi, — that he was at home all Saturday night. When this witness was offered the defendant objected to her testimony on the following grounds:
"(1) Because the evidence that would be put before the jury and by and through the answer of said questions by said witness would be immaterial, inadmissible, irrelevant and incompetent, in that it would not establish nor tend to establish any allegation in the indictment nor any material issue in the case.
"(2) Because the testimony that would go to the jury through the medium of said witness' answers to said questions, would have only the effect to prejudice the jury against the defendant."
The court did not err in overruling the objections made, for it is manifest by the testimony of this witness if true that appellant was not at home on Saturday night, but instead was at Risa Beasley's. This evidence was on a most material issue in the case, — to prove that his alibi was not true.
The testimony of Ike Owens was reproduced. He had testified that in 1907 he worked for T.H. Moore as a bar-tender, and that at 6:30 on Saturday evening (the evening of the killing) he saw appellant, Pringle and Mabry in Moore's saloon. That the three drank together in the saloon, and appellant (McCue) said that Mabry was a stranger in the town and they were showing him around. That Mabry paid for the last round of drinks, and had fifty or sixty dollars in his purse, — that he, Owens, changed a $5 bill for him. Mr. DeBerry testified that Owens was dead, — that he saw his dead body, and attended the funeral. The court did not err in overruling the objections made. Robertson v. State, 63 Tex.Crim. Rep..
When the defendant had offered his testimony to prove an alibi, — that he was at his father's home in Oak Cliff all day Saturday and Saturday night, among other witnesses the State introduced Amos Clem, who testified, among other things, that on that Saturday he was in Dallas and saw appellant on Main Street in Dallas. That "at the time I was passing him, a young fellow passing by said, `Hello, McCue, where are you going?' and the one called McCue said, `Going over to the cement plant after a while.' The cement plant is close to Dallas and west of Dallas, and is near the Texas Pacific Railroad, and I guess it is two or three miles from Dallas. I guess it must have been betwixt two o'clock and three o'clock when I saw the young man called McCue on Main Street, but I couldn't say positively. After that I saw him that night — that evening ten minutes before seven o'clock when he stepped off the sidewalk and went into a saloon, him and two other boys. At the time I saw him ten minutes before seven o'clock it was right north of where I first seen him across straight right north, and I seen two other boys with him and one was carrying a suit case or a grip. The
man sitting there (indicating defendant) was the one with the two boys when I saw them." This testimony was clearly admissible on the issue of appellant's alibi, and when the State had introduced this testimony, and appellant had then introduced J.C. Clem, who testified that Amos Clem had not been in Dallas that Saturday evening, it was permissible for the State to prove by other witnesses that Amos Clem was in Dallas. And when the defendant introduced J.C. Clem and proved by him that Amos Clem had told him he knew nothing about the case, but was going to testify anyway, it was permissible for the State to show by Mr. Samuels that Amos Clem had made the same statement to him one week after the homicide as that he testified to on this trial. When the defendant undertook to impeach the witness Amos Clem by evidence that he was not in Dallas on that Saturday evening, and had made statements that he knew nothing about the case, but was going to testify anyway, then Amos Clem could be supported. Branch's Crim. Law, sec. 874, and cases there cited.
Fawn Simpson testified for the State: "The day before the killing I saw Frank McCue some time after one o'clock on the corner of Elm and Crowdus Street in East Dallas, and east of the Union depot, and about four hundred yards east of the Union depot. He was sitting in Joe Harbretche's saloon at a table drinking some beer, and some fellow was with him, but I did not pay any attention to him. I did not notice how he was dressed. The fellow that was with Frank McCue had a grip setting down by his side. It was a suit case — I didn't pay any attention to it. It was similar to that grip you show me, I think. McCue and the young man were sitting at the table on my left as I went in at the front door of the saloon. They were drinking beer — that is, I took it to be beer. I just spoke to Frank as I went in — just said, `Hello, Frank,' and he said `Good evening.' No words passed between us. It was after one o'clock. The man that went in there with me was W.B. Fortune." This testimony was admissible, for it tended to show that appellant was not at his father's home in Oak Cliff all day Saturday as contended by him. The State then introduced W.B. Fortune, who testified that he did go in the saloon with Simpson; that two men were sitting at the table, one of whom Simpson addressed as Frank. That he did not know appellant, and could not and would not identify appellant as one of the persons sitting at the table. It was permissible for Mr. Fortune to testify that he went in this saloon, and saw two men sitting at the table, although he did not know appellant and could not identify him, when Simpson testified that he did know appellant, and appellant was one of the men he and Fortune saw sitting there. Fortune was testifying to facts within his knowledge and not to anything someone else had told him.
By his twelfth bill of exception appellant would show the following facts: "The defense of the defendant herein and his sole defense, it might be said, was an alibi. This alibi for the most part was made by the immediate members of the defendant's family, towit: his father and
mother, his brothers and sisters. The substance of defendant's alibi was that during all of the day and all of the night of the day on which and in which the offense laid in the indictment was committed, that defendant was at his home in the Oak Cliff part of the City of Dallas, Texas, and that defendant was at no time, during all of said day, and all of said night, away from his said home or outside of his father's home.
"Only two witnesses besides the members of the defendant's family testified for defendant that he was at his home on the evening of the day and immediately preceding the night on which and in which the offense laid in the indictment was committed. These two witnesses were W.A. Brown and Sam Anderson, and both of them swore that as they were passing the home of defendant at or about the hour of four o'clock on the evening immediately before the offense herein as is disclosed by the testimony in this record was committed, at about 8 o'clock that night they saw defendant at his said home and in a hammock on the porch of said home.
"Said members of defendant's family swore positively that defendant was at his home and at no time absent from or away from his said home during all of the day and all of the night of the day when the evidence shows deceased named in the indictment was killed. . . .
"All of the testimony of all the witnesses in this case, who testified as to the matter at all, shows positively that defendant's home where defendant lived at that time with his father, was fully three miles from the place where the dead body of deceased named in the indictment was found, and from the place where deceased was killed. That said home was west of the Trinity river, and fully three miles from the courthouse just east of the Trinity river in the City of Dallas, proper, and that said home was fully four miles from the Union depot in the City of Dallas proper.
"It was the contention of the State herein, stoutly argued by the State, both in the State's testimony and in the argument by counsel for the State, that defendant's defense of an alibi was false. The theory of the State in this case was that defendant was a principal in the commission of the offense laid in the indictment, and that he was actually present at the time and place of the commission of the offense, three miles distant from his home, and that he, together with the State's accomplice witness, Roy Pringle, actually participated in the commission of the offense.
"The names of defendant's family who testified in his behalf, and who swore to a complete alibi for defendant, were J.M. McCue, father of defendant; Mrs. J.M. McCue, mother of defendant; Howard McCue, brother of defendant; Miss Willie McCue, sister of defendant; John McCue, brother of defendant, and Miss Ida McCue, sister of defendant. After all of said members had testified and established by their testimony and so far as their testimony was concerned, a complete and positive alibi, the State introduced a great number of witnesses for the purpose of contradicting said members of defendant's family, and for the purpose of destroying defendant's alibi, and for the purpose of showing
that it was false." In the bill are named J.F. Stanley, Ashley Ewing, Will Irby, Ed Irby, Amos Clem, T.N. Briggs, A.B. McDougal, G.T. Hare, J.A. Burgess, Gertrude Wilson, Alice Meadors, Sis Hamp, B.D. James, M. Samuels, Roy Pringle, Fawn Simpson, W.B. Fortune, Ike Owens, Callie Flowers, as witnesses who testify to facts which would show that the alibi is not true, and then recites: "And be it remembered that L.J. Truett, county attorney of Collin county, who conducted the trial of this case, in his cross-examination of each and all of the hereinbefore named members of defendant's family, subjected each and all of them to as thorough cross-examination as he could possibly give."
After reciting all these facts appellant insists that the court erred in refusing to permit him to introduce witnesses to prove that the reputation of the father and mother of appellant and his sisters and brothers for truth and veracity was good. It is true that appellant's father and mother and other members of his family lived in Dallas County, while this case was tried in Collin County, and that the witnesses offered by appellant to prove his alibi had perhaps no acquaintance in Collin County, but as to that the record discloses that all the witnesses for the State on this issue also lived in Dallas County, and Mr. Branch in his work on Criminal Law correctly states the rule to be: "Proof of general reputation of defendant or any other witness for truth is not admissible where no attack has been made on thewitness, but there is a mere contradiction between witnesses, or confusion in the statements of the witness," citing Hill v. State, 52 Tex.Crim. Rep., and many other cases in section 877 of his work. In this case in the cross-examination of the witnesses who testified to facts tending to prove an alibi for appellant, no questions were asked that would reflect upon the witnesses. Only a legitimate cross-examination was made, testing their memory, etc., and under such circumstances the court did not err in excluding the testimony as to general reputation for truth.
The most serious question in the case is the one presented by bills of exception Nos. 14, 13, 11, and 3. We will not take them up in the order numbered, but rather as they occurred on the trial. In bill No. 14 it is made to appear that while the accomplice, Roy Pringle, was testifying the State proved by him that the first time he ever met appellant was at Fannie Howard's; that he had met him there several times; that Fannie Howard ran a saloon and negro house of prostitution. In bills Nos. 11 and 13 it is shown that Officers Briggs and McDougal testified that on Tuesday after the homicide on Saturday night they saw appellant drive up to Fannie Howard's saloon and house of prostitution with two negro women in his buggy; that they all got out and appellant went in Jew Jake's saloon and invited all present to drink with him; that he rattled money in his pocket and threw a dollar down on the counter; that from the noise made he judged appellant had some twelve or fifteen dollars, and appellant remarked that everybody who refused to drink with him was a piker. In bill No. 3 it is shown by Deputy Sheriff Chick when he arrested appellant on Thursday, that
he saw him come out of an alley between Fannie Howard's saloon and her house of prostitution, and he arrested him in front of Fannie Howard's door. All this testimony was objected to on various grounds, it being unnecessary to state them all, for if the testimony was inadmissible, sufficient objection was made to it.
As to the testimony of Officers Briggs and McDougal, we think it clearly admissible. The record discloses that just prior to the killing of young Mabry, appellant pawned his watch to Ed Goldstein, who was in the pawn brokerage business; that appellant was, in common parlance, broke. That Mabry had on his person some fifty or sixty dollars, and Pringle says Mabry was killed to get his money. Under such circumstances any testimony which would tend to show that appellant had money after Mabry's death would be admissible. It would be a circumstance tending to show his guilt under the facts in this case in the absence of any explanation of where he got this money. It is perhaps unfortunate for appellant, wherever he got the money, that he was spending it taking negro prostitutes driving in a buggy, and spending it in Jew Jake's saloon, treating the crowd, yet this would not render the testimony inadmissible. The fact Mabry on the day of his death had money and appellant saw it, is shown by the testimony of Mrs. Meadors, Ike Owens and others. That he did not have it when his body was found is shown by all the testimony. Then the fact that appellant had no money prior to Mabry's death, and the further fact that he was well supplied with money after Mabry's death, would tend strongly to corroborate Pringle, who testified that appellant killed Mabry for his money.
As to the testimony of Pringle that the first time he met McCue was at Fannie Howard's house, and that he had seen him there frequently, under the evidence in this case, was admissible. Gertrude Wilson testified that at 11 o'clock on the night of the homicide, while she did not see appellant, yet she heard him talking there at Fannie Howard's place. Sis Hamp testified that appellant and Pringle came to that house that Saturday night and that they were bloody; that they washed their hands and changed their clothing in this house of prostitution, and spent the remainder of the night in the saloon, "smoking hop," etc. That appellant had been seen at these places and was a frequent visitor of them, would be material in passing upon whether or not Gertrude Wilson and Sis Hamp had testified to the truth, and would be admissible as supporting their testimony. The order of its introduction would be immaterial, if upon the record as a whole it was admissible. Appellant appreciated the strength and force of Sis Hamp's testimony and sought to break it down by a most rigid cross-examination; by evidence that her reputation for truth and veracity was bad, and by proving contradictory statements.
The other bill, that appellant when arrested on Thursday, after the homicide on Saturday night, was coming from these places and was arrested in front of the saloon, would be admissible in our opinion for the same reason. But if we should be wrong in these conclusions (which we do not think we are) would the fact that appellant was a frequent
visitor and often found in Fannie Howard's saloon or her house of prostitution influence the jury in passing on his alibi? Appellant did not testify, so it can not be said that this testimony caused the jury to fail to give due weight to his testimony. His defense as hereinbefore shown was an alibi, and it is not shown nor asserted that any of the persons who testified to his alibi were ever in Fannie Howard's saloon nor her house of prostitution, so this testimony could not affect their credit as witnesses. It can not be said this testimony influenced or aroused the passion of the jury, because they gave appellant the minimum punishment for the offense submitted to them. As the testimony all showed that deceased was murdered to obtain his money, only murder in the first degree was submitted, and if the jury had given him the death penalty, then it might be said that this testimony inflamed their minds against appellant, but they do not assess that punishment, but give him the least punishment the law authorized for the crime submitted to them, so evidently this testimony created no prejudice in the minds of the jury, and as it would not and could not affect his defensive theory and testimony, and if it did tend to support the State's evidence and theory it would be admissible for that purpose, if error there be, in admitting the testimony, would not call for a reversal of the case.
These are all the bills of exception in the record, — the remainder of the motion for a new trial complains of the charge of the court. As before stated, the court only submitted murder in the first degree, and in so doing appellant concedes there was no error, as the element of murder in the second degree or manslaughter are not presented by the testimony. Many complaints are urged to the charge on accomplice testimony, but these matters have been so frequently before the court we do not deem it necessary to discuss each of them. The charge on this issue as given is a virtual copy of the form prescribed in Campbell v. State, 57 Tex.Crim. Rep., and approved in King v. State, 57 Tex.Crim. Rep., and other cases handed down since the rendition of these two opinions. The criticism of the charge on alibi has heretofore herein been passed upon and the cases cited, showing there was no error in that portion of the charge. The charge on who are principals in the commission of an offense is severely criticised, and taken by itself it might be subjected to some criticism. But when we read the charge as a whole, no jury could have been misled thereby. The criticism that defendant's defense being an alibi, the charge on principals was erroneous in that it did not require the jury to find that defendant was personally present at the time of the commission of the offense, might be said to be true by a strained construction of the language used in that paragraph alone, yet we find that in paragraph 18 of the charge the court instructs the jury: "Now if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed, at the time of the commission thereof, you will find the defendant not guilty," so by no construction of the charge could it be said that the jury was authorized to convict appellant, though he was not present at the time of the commission of the offense.
This case was submitted the latter part of last June; the record is a voluminous one, and we have read and reread it, so as to arrive at the true issues in the case, and the testimony legitimately bearing on these issues. A lifetime imprisonment is assessed against appellant; the testimony supporting his plea of alibi is strong, and yet the testimony offered by the State on that issue is as equally convincing. The court in his charge was fair to appellant, and the only error in the record, as we view it, were the remarks of the county attorney in commenting on the testimony which was legitimate to prove identity, yet used by him on other issues. But as hereinbefore stated, this could not and would not affect this plea of alibi, nor support the State's theory that appellant was the person who cut Earl Mabry's throat and murdered him for his money. That it did not arouse the passion nor inflame the minds of the jury is evidenced by the verdict inflicting the minimum penalty, and we are constrained to believe that the judgment should be affirmed, and it is so ordered.
Affirmed.
ON REHEARING. February 25, 1914.