Appellant was convicted of the murder of Miss Emma Staley and his punishment assessed at life imprisonment.
The commencement of the indictment is: "In the name and by the
authority of the State of Texas." This is in literal compliance with the statute (Art. 451 C.C.P). The Constitution, (Art. 5, sec. 12) is: ". . . The style of all writs and process shall be, `The State of Texas.' All prosecutions shall be carried on in the name and by authority of the State of Texas and shall conclude: `against the peace and dignity of the State.'" The word "the" is not contained in the language of the Constitution before the word "authority," as it is, and required by, the statute. Said language in the Constitution — in the name and by authority of the State of Texas, is not in quotation. The words in the statute are in quotation; nor are said words in quotation as are the words required in the style of all writs and process, and in the conclusion of an indictment.
In Moss v. State, 60 Tex.Crim. Rep., a motion to quash the indictment therein because the word "of" was inserted in the language — "in the name of and by authority of the State of Texas," the motion was held to have been correctly overruled. In that case the word "the" was also used before the word "authority," just as in this indictment. What was said and held in said Moss case as to the insertion of the word "of" is specially applicable herein as to the word "the." The court correctly held the indictment herein
was not invalid because of the insertion of said word "the," and in overruling appellant's motion to quash on that ground.
After the other usual allegations, the indictment averred that appellant with malice aforethought `did kill and murder Emma Staley "in some way or manner, and by some means, instruments and weapons to the grand jurors unknown." Appellant's motion to quash because the language just quoted did not allege the means whereby the alleged murder was committed was correctly overruled. Walker v. State, 14 Texas Crim. App., 609; Sheppard v. State, 17 Texas Crim. App., 74. In the Walker case this identical language was used, and the indictment held valid. The court said: "It is well settled that it is sufficient to allege that the murder was committed `in some way or manner, and by some means, instrument and weapons, to the jurors unknown.' (Com. v. Webster, 5 Cushing's Rep., 295; State v. Wood, 53 N.H. 484; State v. Burke,54 N.H. 92; State v. Williams, 7 Jones N.C., 446; People v. Cronin, 34 Cal. 191; People v. Martin, 47 Cal. 101; Com. v. Martin, 125 Mass. 394; 1 Whar. Prec., 114; Whar. Cr. Ev., sec. 93; 1 Arch. Cr. Prac. and Pl., note 1.)"
When the clerk was drawing the names of the veniremen, in the presence and under the direction of the judge, appellant claimed his attorney had the right to be present and to make and take a list of the names as drawn, which was denied by the judge. He cites only Article 647, White's An. C.C.P. as authority, because it prescribed that said drawing shall be "in open court." This Article, as contained in Judge White's book was afterwards amended by the Act of 1907, p. 271, and said words "in open court" were omitted, (Said Art. is now 660 in the C.C.P.) thereby clearly showing the Legislature intended to change the statute, and did change it, so that the drawing could be done by the clerk in the presence of the judge alone, and that this did not have to be done "in open court." Appellant's attorney had no right to be present and take the names as drawn (Oliver v. State, 70 Texas Crim Rep., 140 and cases there cited). The law prescribes the names shall be furnished him (Art. 671 C.C.P.) by service of a writ on him giving the names of the veniremen served.
The writ of venire for the 125 drawn veniremen included these four names viz., O.L. Lindeman, A.E. Pagel, C.C. Lancaster, andOF. Winkler. The sheriff's return showed he had served them. In copying the names to serve on appellant these were given as G.L. Linderman, A.S. Pagel, C.C. Lancaster and C.F. Winkler Thereupon appellant moved the court to quash the service of the writ on him, which was overruled. The court, in approving the bill, qualified it by stating that these four persons — whichever were their correct names — were excused by the court, that appellant was not required to, and did not, pass on either of them, nor use his challenge on
either, that he made no objection to their being so excused, nor did he ask for an attachment for either of them under either name, and that he did not exhaust his challenges.
Judge White in his An. C.C.P., sec. 721, says: "Mere discrepancies in some of the names as stated in the copy and the original will be immaterial where it appears that the parties named did not serve on the trial, and defendant did not exhaust, his peremptory challenges. Bowen v. State, 3 Texas Crim. App., 617. If there is a variance between the name set out in the copy and the original, the proper practice is to stand such veniremen aside. Mitchell v. State, 36 Tex.Crim. Rep.; Hudson v. State, 28 Texas Crim. App., 323; Thompson v State, 19 Texas Crim. App., 593; Swofford v. State, 3 Texas Crim. App., 76; Bowen v. State, 3 Texas Crim. App., 617." Melton v. State, 71 Tex. Crim. 130. The court's action herein was correct.
The State's testimony showed that deceased left her home on the night of March 12th and in some distance therefrom met appellant near a straw stack, and left with him going in a certain direction which he pointed and which it seems was towards where her dead body was found in the river on March 21st. On March 22nd Mr. Durrett went on the ground at the hay stack, and again on March 26th he and Mr. Smith the sheriff, went there and hunted for tracks leading away from there. They each were permitted over appellant's objection to testify in substance that they found tracks, at different places, made by small shoes with sharp heels, the toes pointing in a southerly, and the heels in a notherly direction (which was from towards said hay stack, and towards where her body was found.) The ground had been rained on — a light shower — since the tracks were made. The shoes from deceased's feet were then shown the witness and Mr. Durrett testified the heel part of the tracks appeared to have been made with a small heel and as near as he could judge, about the size of the heel of the shoe. The sheriff's evidence was to the same effect.
This evidence was admissible. The testimony to establish guilt was wholly circumstantial. When this is the case it has always been held, "the mind seeks to explore every possible source from which any light, however feeble, may be derived." Noftsinger v. State, 7 Texas Crim. App. 322; Early v. State, 9 Texas Crim. App., 476; Simms v. State, 10 Texas Crim. App., 131; Bailey v. State, 144 S.W. Rep., 1005; Belcher v. State, 71 Tex. Crim. 646, 161 S.W. Rep., 459; Durfee v. State, 73 Tex. Crim. 165, 165 S.W. Rep., 180; Archer v. State, 74 Tex. Crim. 524, 168 S.W. Rep., 857; Hand v. State, 77 Tex. Crim. 623, 179 S.W. Rep., 1155; and "the command of the law is turn on the light." Preston v. State, 8 Texas Cr. App., 30; Harris v. State, 31 Tex.Crim. Rep..
The writ, with the names of the veniremen, was served on appellant about 5 o'clock June 25th. The case was set for trial June 27th. Appellant made a motion to postpone the trial for one, two, or three days in order to give him and his attorneys additional time to investigate these veniremen. The motion was of considerable length and set up many matters along this line. The court heard evidence on it and after doing so correctly overruled it. The judge allowing the bill, qualified it by stating that Mr. Hare, one of appellant's attorneys, had lived in said county fifty years, had practiced law therein for twenty-five or thirty years and had been county and district attorney therein; that Mr. Hubbard, another one of his attorneys, had resided in said county for about twelve years and practiced law therein during that time; that Mr. Felts, another one of appellant's attorneys, had resided in the county some twenty or twenty-five years during most of which time he had practiced law therein and had been county judge; that the other attorney of appellant, Mr. Bowmer had practiced law in the county for five or six years and had been district attorney; "and from the evidence adduced in the case the court found that all of these attorneys were reasonably well acquainted with the venire and that they did not all know the same veniremen, but the defendant had the benefit of the knowledge of four attorneys." And further, that he did not exhaust his peremptory challenges, having two left when the jury was completed.
The statute (Art. 672 C.C.P.) expressly provides that in this character of case one day's service of a copy of names of persons summoned under the special venire shall be sufficient. In this case he practically had two days and was unsually well equipped with experienced attorneys who had more than ordinary knowledge of the persons summoned. The court committed no error in overruling this motion.
The State introduced testimony showing that appellant for some two years had been having sexual intercourse with the deceased, and that she was pregnant by him at the time of her `death with the fetus five or six months old. Appellant had married another woman on Nov. 22, 1916. The State introduced other testimony to the effect that appellant had seen and had sexual intercourse with deceased, after said marriage and was in communication with her. He was shown to have been in earnest private conversation with her in Belton at a retired place Saturday evening before she was killed, if she was, on Monday night following. Appellant denied all this. The theory and contention of the State was that appellant was informed by deceased that she was pregnant by him, and that appellant arranged with her to secretly at night take her away to another place some distance from her home where she could be delivered of the child without publicity or to produce, or have produced, an abortion on
her; that he arranged with her to meet him near said hay stack on the night she left home and carry out that plan, but instead of doing so that night soon after he got her away from home he killed her, and placed her body in deep water in the Leon River so as to cover up and hide his crime. Appellant contended that he did not kill deceased nor meet her at the hay stack and take her away therefrom: but that she voluntarily committed suicide.
As stated, his guilt, if he was guilty, had to be established by circumstantial testimony. Hence the court committed no error in admitting the testimony of Mrs. Staley, deceased's mother, and Miss Miller and Mr. Tulloch, the mail carrier, to the effect that deceased shortly before her death, and after appellant's said marriage wrote and mailed his letters properly addressed to him at his postoffice address. This was a circumstance from which the jury would be authorized to believe that he received such letters, that deceased was in communication with him about her condition, and thereby an interview was arranged at Belton and arrangements made for him to take her away.
Under the issues herein and the contentions of each side the court did not err in permitting several witnesses to testify, over his objections, that deceased was cheerful, in a good humor, jolly and apparently in good spirits for several days continuously before she left home the night she did. This testimony would tend to disprove appellant's contentions that deceased committed suicide.
The statement of facts is very voluminous — 319 typewritten pages. The other record is also quite voluminous. The testimony on several material points is directly in conflict. The credibility of the witnesses and the weight to be given to the testimony was exclusively for the jury. The evidence to establish appellant's guilt is wholly circumstantial. It would be out of the question to give here the whole testimony or even all of the many facts and circumstances tending to show his guilt. It is unnecessary to give the evidence which would tend to show he was not guilty, for in determining whether the evidence is sufficient to sustain a conviction it is necessary to look only to the incriminating testimony and the reasonable inferences therefrom. A brief summary of some of the incriminating testimony and conclusions to be drawn will be given.
Appellant was a young man some twenty-five or twenty-six years old when he became acquainted with deceased and lived a few miles from Belton. She then was a young girl eighteen or nineteen years old and lived with her parents, who also lived a few miles from Belton. He waited on and kept company with her for some years before and up to the time he married another woman. He married the other woman November 22, 1916. After he had been waiting on deceased for a while he succeeded in having her to have sexual intercourse with him. He had other acts of intercourse with her more or less frequently as he had opportunity up to about the time he
married the other woman, and at least one, if not more times, after his marriage. One witness testified he saw appellant in a buggy with deceased off of the road one night about nine o'clock sometime after his marriage. Another witness testified that sometime after appellant's marriage, he, appellant, tried to get the witness to get deceased out from her home so that he could get to see her and be with her. Appellant saw deceased at her home about January 20, 1917, when he went there and got a load of corn. At the time he thought she was there alone, but her sister was in the house unseen by him. Her sister testified that deceased went out to the lot where appellant got the corn and told such a state of facts as to show he at that time had sexual intercourse with deceased. Another witness swore that appellant admitted to him that he did have sexual intercourse with deceased on that occasion.
Appellant's intimate friend, John Graves, swore that just shortly before the Bell County Fair, which was held on Oct. 4th to 9th 1916, appellant told him he had gotten deceased into trouble — in family way, and asked his advice. He told him to either marry her, or get up and leave the country. Appellant told him he did not want to marry her and would not do so, and promptly skipped out of West Texas. His other intimate friend, W.F. Cowan, swore that appellant told him he thought deceased was in family way and he did not intend to marry her, and gave that as a reason why he was leaving. He remained away sometime until he was advised she was about all right, when he returned. Appellant himself admitted substantially what his two friends swore except that he claimed the time he skipped out because he had gotten deceased pregnant that time was in 1915 and not in 1916 as they swore. He also admitted getting letters from her in September and October, 1916, wherein she told him of her pregnancy by him, claiming that the last letter he received was dated October 25, in which she informed him she was all right again. He did not produce any of the letters she had written him. One of his brothers swore positively that appellant burned said October 25th letter in his house in Belton on the night of October 26th and did not take the letter with him in his trunk when he left his house. Appellant's wife swore that sometime after she married appellant, which was on Nov. 22, 1916, she found that letter in his trunk, read it, and then she burned it. Appellant is shown to have been with deceased early in September and also early in October, and to have had sexual intercourse with her on both occasions. The night after deceased's body was found late in the evening, the undertaker and doctor opened her body and found a well developed foetus — child — in her womb which they swore was five or six months old. There can be no doubt that appellant got her pregnant.
Shortly before her death deceased is shown to have written letters to appellant and mailed them to his postoffice address. On Saturday
evening, March 10th, deceased and appellant were both in Belton. It was clearly shown by several witnesses that they were seen together that evening engaged in earnest conversation at a retired place near a church, away from the frequented and most traveled streets. The facts and circumstances make it clear that he knew that deceased was pregnant by him at the time, and that she was making it plain to him that he must come to her immediate relief and in some way protect her from exposure and disgrace, and doubtless himself from great trouble because she was pregnant by him. Nor can there be any doubt but that he at the time of the interview at the church arranged with her to meet her near her home the following Monday night. On that Monday night, about nine o'clock deceased packed in a laundry bag and a small hand grip considerable of her wearing apparel and toilet articles and then began to dress herself to leave. While dressing she told her mother she was going to meet appellant at a certain hay stack several hundred yards from her home and was going to Nolanville to take the train for San Angelo; that she supposed he would bring a buggy to take her from there to Nolanville but she didn't know whether a buggy or a car, she supposed a buggy. About 11 o'clock that night deceased went from her home to near said hay stack, taking with her her bag of clothes and hand grip. Her mother and sister accompanied her to within a short distance of the hay stack. They then stopped at a secluded place to watch. Deceased waited a while at the hay stack for appellant to arrive. When he approached he whistled. She was then sitting on her laundry bag and when he whistled she stood up and he came to her, put his arms on her shoulders and kissed her. They talked in a low tone which could not be understood by her mother and sister though they heard them talking. They saw him motion in the direction they intended to go and he then picked up her baggage, and they walked away in the general direction of where her dead body was found nine days later in deep water in the Leon River. Her body was found in said river dressed in the same clothes and way she was when she left home. Her legs, just below the knees, had been securely bound together by bailing wire wrapped around tight, and the ends twisted together to the left and a little back from the side of her leg. Her legs were so securely and tightly bound as to prevent walking. She could not have moved one foot before the other. Her body when found was some 150 feet more or less up stream from a high bridge that crossed the river. It seems that some distance below the bridge the river was dammed so the water company could get a supply of water. The bridge was forty feet or more above the water under it. The water at this point and for some distance above was ten, twelve or more, feet deep. Her body when found was in a very bad state of decomposition. The contents of her stomach and other physical facts showed that her death occurred very soon after appellant left the bay stack with her. No doctor or other witness testified specifically
how her death was caused. All the physical and other facts were sufficient to show she did not commit suicide, but that her death was caused by violence. In effect, appellant is shown to have been the only person who had any motive or opportunity to kill her, and that he must have killed her soon after he left the hay stack with her, and then bound her legs and bag of clothing and threw them in the river to conceal his crime.
Ollie Moore swore that on Monday before deceased's body was found the following Wednesday, he saw appellant going up and down said river bank about where her body was found, two or three times as if he was hunting for something.
Appellant has two bills on the same subject. In one it is shown the State introduced Dr. Crain who, with others, had examined the body of deceased soon after it was found. Among other things he testified that the body was in such a state of decomposition, death having occurred so long before, that, "I could not tell if death had been produced by choking or strangulation." He gave no other opinion of his own knowledge derived from an examination of her body as to what caused her death. However, over appellant's objection, he further testified: "My opinion, based on what Doctor Robinson said was the condition of her brain, that is, that it was congested, is that she died either from strangulation or from choroform. I will qualify that statement by saying I did not see the brain myself. I understand Doctor Robinson said he found the brain to be congested." Dr. Robinson had not then testified, but did testify the next day. He said he did not find her brain in the condition on which Dr. Crain had based his opinion as to the cause of her death. Thereupon as soon as Dr. Robinson had testified appellant moved the court to exclude said testimony of Dr. Crain. The court granted the motion, and instructed the jury to disregard Dr. Crain's said testimony and not consider it.
His other bill shows that in the argument before the jury by an attorney assisting the State he said: "Dr. Crain has testified that in his opinion the death of Emma Staley was caused by either chloroform or strangling." Appellant immediately, by his attorney, objected to this argument and requested the court to admonish said attorney and reprimand him for this, and to instruct the jury to disregard this statement. The court promptly complied with the request of appellant, sustained his objections to the said remark, reprimanded the attorney, and then verbally instructed the jury to disregard that statement, and in addition gave a written instruction asked by appellant, telling the jury to disregard the remark of said attorney for the reason that there was no such testimony before them and not to consider said remark at all in making up their verdict.
The bill and record clearly show that said objectionable testimony by Dr. Crain was based on what he had heard Dr. Robinson had
said about the condition of the brain of the deceased, and on that alone. Further, that it was shown by Dr. Robinson that he had made no such statement as to the condition of the deceased's brain, and as soon as this was shown, and it was conceded by all parties, the said objectionable testimony by Dr. Crain was withdrawn from the jury, and they were instructed not only verbally at the time but also in writing to wholly disregard it as well as the remark of the State's attorney.
In Miller v. State, 31 Tex.Crim. Rep. wherein he was convicted for murder with the death penalty assessed, the court, through Judge Davidson, held that the weight of authority was that, the effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, cures the error, and says that such has been the opinion entertained by this court, citing several authorities. And he said: "To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and farce. We cannot sanction such a doctrine." This case has many times been cited, quoted and approved by this court.
In Hatcher v. State, 43 Tex.Crim. Rep., the court therein erroneously admitted the testimony of a witness who swore, in substance, that while he and the appellant therein were in jail together appellant proposed to him to falsely swear to facts on his behalf constituting an alibi. After this testimony was admitted the court realized that he had made a mistake because the appellant therein had not been properly warned. He thereupon withdrew that testimony and instructed the jury not to consider it. Appellant therein claimed that this testimony was of such a damaging character as the withdrawl of the testimony would not cure the error, but this court therein, by Judge Henderson, held against him, Judge Henderson saying, that the decisions of this court on the subject were at variance, and "Some of the cases hold that the exclusion of such testimony will not cure the error, while others hold the contrary. In such a conflict, the true rule would seem to be that if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission thereby cured." Taking this whole matter as shown by these bills, they do not show reversible error under the authorities.
The state showed by the testimony of several witnesses, as stated above, that appellant was seen in earnest and private conversation with deceased in Belton Saturday evening at a rather retired or secluded place; that after this interview between them they returned
to their homes; that on the following Monday night she packed quite a lot of her wearing apparel and toilet articles in a laundry bag and in a small hand grip and dressed herself to leave.
One of appellant's bills shows that her mother was asked these questions and answered them over his objections: "Q. While deceased was dressing to go what did she say to you as to where she was going, if anything? A. She told me she was going to meet Willie Porter at the hay stack. Q. Where did she say she was going to, if anywhere? A. From there to take the train to Nolanville, to take the train. Q. To go anywhere? A. To go to San Angelo, to take the train at Nolanville for San Angelo. Q Did she state how they were to go from the hay stack to Nolanville? A. She said she supposed Willie Porter would bring a buggy, she did not know, a buggy or a car, she supposed a buggy. Q. When did deceased tell you this? A. She told me this about 9 o'clock on the night of March the 12th while she was dressing. Q. About how long after that was it before she left home? A. About two hours."
In this connection, as stated above, deceased's mother and her sister both, in substance, testified they went with deceased several hundred yards distant from their home near to said hay stack, about 11 o'clock that night; that they stopped near by, at a point secluded, and waited — deceased went on nearer to the hay stack; that while waiting they saw appellant go to deceased and have some conversation with her. They could hear them in conversation, but could not distinguish what they said. That while thus conversing appellant pointed in a certain direction, and that thereupon he picked up deceased's baggage and they went in the direction he had pointed; which was in the general direction of where her body was found in the river some nine days later. The bag of clothing and grip were also found in the river near where her body was found with all of the articles of clothing just as they had been packed by deceased at her home preparatory to her leaving therewith. When the body was found she was dressed just as she was when she left home and separated from her mother and sister. Her legs just below the knees were fround wrapped with baling wire, the wire fastened at her left side by twisting the ends together. This bound her legs so tight that it was impossible for her to walk. She could not move one foot before the other. The small grip had been placed in the bag with the clothing and the bag was closed also with bailing wire, and the bag otherwise wrapped with wire. The testimony was clearly sufficient to show that she met her death very soon after she left her mother and sister in company with appellant. Appellant denied killing her and he and his wife, testified that he was at his home during the whole of the night deceased left her home and when she was evidently killed.
Appellant relies upon Brumley v. State, 21 Texas Crim. App., 222, and that line of decisions which in effect hold that where a defendant's defense is self-defense, and deceased had threatened to kill him, that evidence showing that deceased did not go to where the defendant then was for any such purpose or for any unlawful purpose, but instead for a lawful purpose, was inadmissible unless known to the defendant at the time, for it would deprive him of his right to act on apparent danger and appearances to him. We think that line of authorities is not in point and is inapplicable herein. This court, through judge Ramsey in Bozanno v. State, 60 Tex.Crim. Rep., clearly showed the distinction. In that case the court over Bozanno's objection, permitted the witness to testify as to the movements, actions and declarations of the deceased on the day prior to the homicide stating: "The cases in which the actions, declarations and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant has a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent. It can have, we think, no application to such a case as this, and the objection is wholly untenable." In that case such acts, movements and declarations of the decedent were held admissible.
In West v. State, 2 Texas Crim. App., 460, the acts and declarations of the deceased not in he presence of accused were expressly held admissible, the court saying: "It was competent to prove what he said and did at the time he was in the act of leaving home, on his journey, expressive as to where he was going. Such declarations, made at the time of the transaction and expressive of its character, are regarded as `verbal acts indicating a present purpose and intention,' and are therefore admitted in proof, like any other material facts 1 Greenl. on Ev., sec. 108; 1 Ph. on Ev., 150, title Declarations, part of theres gestae."
In Washington v. State, 19 Tex.Crim. Rep., the trial court admitted, over objections, the evidence of two witnesses, of what deceased said to one of them, to-wit: "that the defendant wanted him, witness, to come to his (defendant's) house, on the next morning, and write him, defendant, a letter; witness replied he could not go next morning, but would go that night; whereupon deceased replied that it was no use to go that night, as he, deceased, had seen defendant going down the slough with a shot gun over his shoulder." His objections were that said testimony "was hearsay, irrelevant, and not a part of the res gestae." This conversation between the deceased and the witness was in the absence of the defendant,
and he did not hear it, or know of it, and when concluded deceased himself rode on down to the slough. A shot was soon heard, and later, witness went down, and found the dead body of deceased, killed by shooting him. No one saw who shot him. The evidence to establish defendant's guilt was wholly circumstantial. Defendant was convicted and the death penalty assessed. The case was affirmed. This court, through Judge Hurt held said evidence was admissible, saying that it "tended to show that the defendant was at or near the place of the homicide, and that he had the opportunity and the means of killing the deceased, at the time and in the manner it is shown to have occurred." See also Means v. State, 10 Texas Crim. App., 16; Cox v. State, 8 Texas Crim. App., 254; Tooney v. State, 8 Texas Crim. App., 452; Girtman v. State, 73 Tex.Crim. Rep. — all in point.
In the Girtman case this court held that the testimony of Mr. Diemer as to what the deceased said to him at night 200 yards away from defendant and not heard or known by defendant, to the effect that he, deceased, called upon Diemer "to come up there and take appellant's pistol away from him and make Fox Williams leave; that they (appellant and Williams) were fixing to kill him (deceased)" was held admissible as res gestae of the transaction, wherein Girtman did later kill deceased, citing a number of cases.
In 6 Encyc. of Ev., p. 663, it is said: "Previous to or accompanying departure for scene of homicide: the purpose and intention of the deceased when last seen or when departing for the scene of the crime may be relevant for the purpose of connecting the defendant with the homicide in a circumstantial case, as when the deceased intends or expects to meet the defendant. In such cases declarations by the deceased of his purpose are admitted by some courts as part of the res gestae, by others as verbal acts explaining his conduct . . .," citing a large number of cases from other States, and the case of West,supra. To the same effect is 11 Encyc. of Ev., p. 424; 2 Jones on Ev., secs. 347-8.
In the case of State v. Howard, 32 Vermont, 380 wherein Howard was prosecuted for killing Olive Ash in an attempt to produce an abortion that court through Chief Justice Reffield held that the declarations of deceased as to her purpose in going to the defendant's where the act of abortion was had upon her were admissible, saying: "The declarations of Olive Ash as to the purpose of going to the respondent's (defendant's) were properly admitted as part of the res gestae. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act and were admissible as part of the act."
In the case of the State v. Dickinson, 41 Wis. 299, Dickerson was prosecuted for killing deceased in an attempted abortion on her. Over the accused's objections in that case the court permitted the
witness Mary Erickson to testify that deceased at the time she left, stated she was going to appellant's for the purpose of having an abortion produced on her. The court held that deceased's declarations were admissible, saying: "They constituted a part of the res gestae, were contemporaneous with the main fact under consideration, and were so connected with it as to illustrate its character. 1 Greenl. Ev., 108. It was certainly competent to prove that the deceased went to the house of the defendant at the time it was charged in the information the abortion was produced. Upon the authorities, her intent or purpose is going there might be shown by her declarations then made or previously made; because such declarations became a part of the res gestae. For it is evident the declarations were connected with the act of her going to the defendant; were expressive of the character, motive, or object of her conduct; and they are to be regarded as verbal acts indicating a present purpose or intention, and therefore are admitted in proof like any other material facts. 1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 Wall, 397; Enos v. Tuttle, 3 Conn. 247; Inhabitants of Corinth v. Inhabitants of Lincoln, 34 Me. 310; Lund Wife v. Inhabitants of Tyngsborough, 9 Cush., 36; Nutting v. Page, 4 Gray, 581; State v. Howard, 32 Vt. 380; Moore v. Meacham,10 N.Y. 207; People v. Davis 56 id., 95." In that case the court cites, quotes and approves the decision in State v. Howard,supra.
In Harris v. State, 96 Ala. 24, Harris was prosecuted and convicted for the murder of one Lovelace. Shortly before the deceased was killed he started to the house of the appellant where he was killed. The court held that his declarations of the intention to go to said house and the purpose of his going were held admissible. The court said: "His declarations during the time of this discussion indicative of a purpose to find Becky Thomas, and showing that he had been informed she was at the house of the defendant, were properly allowed to go to the jury as a part of the res gestae of the transaction, tending to explain and give character to his presence and conduct at defendant's house. They were declarations made by one setting out on a journey, or starting to go to a particular place, explanatory of the objects and purposes he had in view in going to the particular place; and for that purpose were admissible, their weight being a matter for the jury to determine. Kilgore v. Stanley 90 Ala. 523, and authorities there cited."
Each of the following cases held exactly the same way, to-wit: Burton v. State, 115 Ala. 1; State v. Vincent, 24 Iowa 570; State v. Winner, 17 Kansas, 298; Tilley v. Commonwealth, 89 Va. 136; Thomas v. State, 67 Ga. 460. Other text books and cases from other jurisdictions to the same effect could be cited. See also note 1 Wh. Cr. Ev. 495; Wig. on Ev., Sec. 1726.
Under the circumstances of this case and the authorities the said testimony of Mrs. Staley was admissible.
Appellant made a motion to quash the special venire alleging several matters which he claimed required the court to quash it. The State contested this motion. The court heard evidence thereon and after hearing the evidence overruled the motion, to which appellant excepted. The bill setting up this evidence was not filed till long after the adjournment of the court for the term hence under a great number and uniform decisions of this court it cannot be considered. See Reyes v. State, 81 Tex. Crim. 588, 196 S.W. Rep., 533 where a large number of cases so holding are collated.
The court gave a full and correct charge on circumstantial evidence which was in conformity with such charges universally held correct by this court. Notwithstanding this, appellant requested several charges on the same subject which the court refused because covered by the main charge. The action of the court was correct.
The court did not err in one paragraph of his charge in telling the jury that "counsel for the State nor defendant have any right to discuss with you or refer to any fact or circumstance not in evidence, and you must not consider or in any way be influenced by any remark or the discussion of any fact or circumstance by the counsel in this case when such fact or circumstance is not in evidence." The charge embodies a correct principle and we cannot see how it could have injured the appellant in any way.
Mrs. Staley, deceased's mother, testified in substance that she saw deceased go off with appellant from said hay stack, as more fully given above. On cross-examination of her, appellant, in an attempt to impeach her, had her testify that on the night soon after the body of deceased was recovered, she had stated to the district attorney that she could not swear it was appellant who took her daughter off but it was a small man and had his general appearance. The court therefore did not err in permitting the sheriff to testify that on that night before she made the statement to the district attorney that she stated to him that it was appellant who went off with her daughter on that occasion. Sec. 181, 1 Branch's An. P.C.
Alibi was a defense of appellant. The State's testimony, as given above, shows deceased left her home just about or just after 11 o'clock at night in company with her mother and a sister to meet appellant by appointment, near a hay stack several hundred yards from her home. It must have taken her several minutes to have walked the distance. She waited there sometime before appellant reached her. So that, according to the State's evidence, it must have been about 11:30 or later, when appellant reached her. He testified he played cards at his home that night until 9:30 or 10 o'clock, or something like that and then went to bed, and remained there until next morning. He introduced his brother, R.L. (Pete) Porter, who testified to the card playing and going to bed substantially as appellant did. Further, on direct examination Pete said appellant "did not leave the house that night and drive his horse and buggy off before 10 o'clock;
I cannot swear as to whether he left before 11 o'clock or not, but I do not think he did." This witness described the house as fronting east, a gallery in front, and a hall through, he occupying the southeast room and appellant a room on the north back across the hall. Appellant said "I sleep across the hall just opposite Pete." Appellant's wife swore there was just a hall between Pete and appellant's rooms, and that the door from each room opened into this hall. Pete Porter and others testified the sheriff, Smith, with a posse, went to appellant's about 2 o'clock at night after deceased's body had been found to arrest appellant. Upon reaching there Pete swore the sheriff "yelled `hello.'" That he was "waked up by some one calling hello,' `hello.'" "I raised up in bed and said `hello.'" The sheriff then asked him, "Can you tell me where Uncle Johnnie Sanderford lives, and I said he was way off the road, and he asked me who was living there and I told him I did, and he said didn't Willie Porter live here." He answered that he did and that he was back in his room. Pete Porter then got up out of bed, armed himself with his pistol and he says went to the door. The State then asked him if he did not then ask Mr. Smith, the sheriff, if there was anybody with him who would hurt Willie Porter. He denied that he asked the sheriff any such thing. The sheriff's posse at the time was located at different places about the house so as to prevent an escape and arrest appellant if he had attempted to escape. Afterwards the State introduced the sheriff, Smith, who testified, over appellant's objections, that on said occasion Pete Porter asked him if there was any one with him that would hurt Willie Porter.
On direct examination appellant had not asked his brother Pete anything about what occurred at the time of appellant's arrest that night. From the testimony, there can be no doubt but that appellant heard the sheriff and all that was said at the time between him and his brother, Pete, and heard Pete ask the sheriff if there was any one with him who would hurt him, appellant.
The authorities hold that when such conversations between others occur in the presence or hearing of an accused they are admissible. Holden v. State, 18 Tex.Crim. Rep.; Oliver v. State, 70 Tex.Crim. Rep.; Miller v. State, 67 Tex. Crim. 654; LaGrone v. State 61 Tex.Crim. Rep.; Southall v. State, 77 Tex.Crim. Rep.; Robbins v. State, 73 Tex. Crim. 367; 200 S.W. Rep., 525; 2 Whart. Ev. (2 Ed.), sec. 1136. Such testimony is not so collateral as that the answer of the witness is conclusive; and he can be impeached by showing he did ask such question as was done in this instance.
The authorities also hold that animus, bias and interest, etc., of any witness can always be shown, and that such testimony is never collateral. The testimony makes it clear that as soon as Pete Porter learned the sheriff was there to arrest appellant, he armed himself, went out of his room into the hall right at appellant's room, and
demanded to know of the sheriff if there was any one with him who would hurt appellant. Thus showing his great interest in appellant's behalf. But the appellant requested, and the court gave his special charge as follows: "You are charged that the evidence of Hugh Smith, a witness for the State, in reference to what R.L. Porter might have said to him on the night that the defendant was arrested cannot be taken by you nor considered by you as any evidence whatever of the defendant's guilt or innocence, and the same should not be considered by you for such purpose, but if considered can be considered by you only for the purpose of determining the credibility and the weight to be given to the testimony of R.L. Porter, and for no other purpose."
So that, under no circumstance, does appellant's bill on this subject show reversible error.
The judgment is affirmed.
Affirmed.
DAVIDSON, PRESIDING JUDGE. (dissenting).