DAVIDSON", Presiding Judge.
Appellant was found guilty of the murder of his wife, his punishment assessed at death.
Several bills of exception were reserved to the action of the court overruling cause for challenge urged by appellant to some of the jurors. All of these jurors were chállenged peremptorily. When the eleventh juror was accepted by appellant he still had one peremptory challenge left. The twelfth juror accepted, stated he had no opinion whatever as to the guilt or innocence of the accused. He was accepted by both parties. So it would seem from this statement by the trial court, when the twelfth" juror was accepted, appellant still had remaining and unexhausted one peremptory challenge. Ho juror sat upon the jury who was in any way objectionable. Under the unbroken line of decisions construing our jury laws, a defendant cannot urge a reversal for supposed erroneous rulings of the court in not sustaining causes for challenge, unless some objectionable juror has been taken on the jury.
Owen was permitted to testify that appellant, in a conversation with him, used the following language: “My old daddy and mammy are parted now on account of him being jealous of her; says I hain’t built that way.” Objections urged were its irrelevancy, misleading and not a part of the res gestee. This conversation took place on Thursday evening, deceased having been missed since Wednesday night, and while witness and appellant were searching for appellant’s wife. The court qualifies this bill, “that the witness Owen had already testified to many things the defendant said to him about his (defendant’s) people, etc. The defendant was not under arrest.” We believe this testimony was properly admitted. Defendant by his statement had left the impression that his wife had deserted him and run away with another man. Subsequent developments showed that she had been killed on Wednesday night, by being choked, and buried in appellant’s garden; and in seeking for the motive for the killing evidence was introduced to show there was no jealousy existing between them, -and that they lived happily together.
Some objections were urged in the motion for new trial to the introduction of appellant’s confession made to the Sheriff and in the presence of the jailer. This evidence was admitted without objection at the time. Ho bill was reserved, and it was criticised for the first time in the motion for new trial. This comes too late. In fact, even had an objection been urged, it occurs to us that it would have been without merit, for the facts show he was fully warned before the statement was made.
When the case was called for trial, motion was made to change the venue on account of prejudice against appellant in Red River County.
The affidavit was signed by appellant, his brother and brother-in-law. The controverting affidavit was signed by the sheriff. Appellant took the stand In his own behalf in regard to this motion, as did the brother and brother-in-law. He also introduced in evidence extracts from the editorials published in a couple of newspapers. It seem that the newspaper articles were rather critical in their write up of the homicide. One of the hlain points urged was the fact that when the sheriff arrested appellant about the time of the discovery of the dead body, he was. carried to Lamar County and incarcerated in that jail for safe-keeping; and there were statements to the effect that this was done to prevent possible or probable mob violence. It is admitted that a mob was not formed hor sought to be formed; but the current talk was that he was carried to Lamar County for sáfe keeping for fear of being mobbed. The sheriff testified that appellant was carried to Lamar County for sake keeping—not that he anticipated any mob violence, but because of the insecurity of his jail. He testified that the jail of Bed Biver County was anything but a safe one in which to place prisoners. The examination took rather a wide range, and to meet defendant’s case made by his witnesses—that there was a great deal of excitement at the time, and the articles referred tb as having been published in the papers intensified that feeling, the State introduced a list of witnesses who had lived in the county from about five to sixty years, from practically all sections of the county, who testified that there was no such feeling of prejudice in the county as would debar appellant a fait and impartial trial. They practically agree that at the time of the killing, or just after its commission and discovery, there was more or less talk in the country predicated very largely upon the newspaper statements; it was shown that appellant was almost an entire stranger in the county, lived in the extreme eastern edge of it, and was not known out of that immediate neighborhood. Some of the county officers and ex-officers were placed upon the stand and testified they .had never heard of him at the time this killing occurred, although they had canvassed the county electioneering among the people. It is practically made to appear that all the talk and conversation, Or nearly all of it, in regard to the homicide occurred immediately after it occurred and rather incidental to the statement in the papers. Whatever feeling had been engendered at that time had practically passed away, and it had not been discussed more than any other murder case would have been discussed for a considerable period of time: in fact from shortly after the arrest of appellant, these witnesses practically all agree there was no prejudice in the county against appellant such as would prevent a fair and impartial trial; that there were anywhere from 5,300 to 6,000 qualified jurors in the county, and 'whatever of prejudice may have or was then existing against accused, was .confined mostly to the immediate section where the homicide was committed, to wit: the eastern end of the county. Without going further into the statement of the evidence, and its details, which was very full :and covered every section of the county, we do not believe the evidence.
was of such a character as required a charge of venue. The evidence is not as strong showing or tending to show the prejudice in this case as in many others that have come before this court, in which the action of the trial court was sustained in refusing to change the venue. The cases relied upon by appellant, to wit: Gallaher v. State, 40 Texas Crim. Rep., 296; Randle v. State, 34 Texas Crim. Rep., 43; and Moore v. State, 79 S. W. Rep., 565 are not in point. That is, the case here made by the facts is not brought within the rule laid down in those cases.
It is contended that the evidence is not sufficient to justify the verdict. To this contention we cannot agree. The evidence discloses that appellant and his wife were living together alone at the time of the killing; that their marital relations were as pleasant as ordinarily between husband and wife; they were seen the day before the homicide at night between dinner and sundown working together on a fence. This was on Wednesday evening, and she was never seen afterwards alive. Her body was found on Friday, buried in the garden, between two rows of onions. Her body was arrayed in her night gown and wrapped in a quilt, and showed that she had been choked. There was a large knot on her forehead, also one behind the ear, and her skull was crushed in the back part. One or two of the witnesses testified to the fact that her neck was broken.
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DAVIDSON", Presiding Judge.
Appellant was found guilty of the murder of his wife, his punishment assessed at death.
Several bills of exception were reserved to the action of the court overruling cause for challenge urged by appellant to some of the jurors. All of these jurors were chállenged peremptorily. When the eleventh juror was accepted by appellant he still had one peremptory challenge left. The twelfth juror accepted, stated he had no opinion whatever as to the guilt or innocence of the accused. He was accepted by both parties. So it would seem from this statement by the trial court, when the twelfth" juror was accepted, appellant still had remaining and unexhausted one peremptory challenge. Ho juror sat upon the jury who was in any way objectionable. Under the unbroken line of decisions construing our jury laws, a defendant cannot urge a reversal for supposed erroneous rulings of the court in not sustaining causes for challenge, unless some objectionable juror has been taken on the jury.
Owen was permitted to testify that appellant, in a conversation with him, used the following language: “My old daddy and mammy are parted now on account of him being jealous of her; says I hain’t built that way.” Objections urged were its irrelevancy, misleading and not a part of the res gestee. This conversation took place on Thursday evening, deceased having been missed since Wednesday night, and while witness and appellant were searching for appellant’s wife. The court qualifies this bill, “that the witness Owen had already testified to many things the defendant said to him about his (defendant’s) people, etc. The defendant was not under arrest.” We believe this testimony was properly admitted. Defendant by his statement had left the impression that his wife had deserted him and run away with another man. Subsequent developments showed that she had been killed on Wednesday night, by being choked, and buried in appellant’s garden; and in seeking for the motive for the killing evidence was introduced to show there was no jealousy existing between them, -and that they lived happily together.
Some objections were urged in the motion for new trial to the introduction of appellant’s confession made to the Sheriff and in the presence of the jailer. This evidence was admitted without objection at the time. Ho bill was reserved, and it was criticised for the first time in the motion for new trial. This comes too late. In fact, even had an objection been urged, it occurs to us that it would have been without merit, for the facts show he was fully warned before the statement was made.
When the case was called for trial, motion was made to change the venue on account of prejudice against appellant in Red River County.
The affidavit was signed by appellant, his brother and brother-in-law. The controverting affidavit was signed by the sheriff. Appellant took the stand In his own behalf in regard to this motion, as did the brother and brother-in-law. He also introduced in evidence extracts from the editorials published in a couple of newspapers. It seem that the newspaper articles were rather critical in their write up of the homicide. One of the hlain points urged was the fact that when the sheriff arrested appellant about the time of the discovery of the dead body, he was. carried to Lamar County and incarcerated in that jail for safe-keeping; and there were statements to the effect that this was done to prevent possible or probable mob violence. It is admitted that a mob was not formed hor sought to be formed; but the current talk was that he was carried to Lamar County for sáfe keeping for fear of being mobbed. The sheriff testified that appellant was carried to Lamar County for sake keeping—not that he anticipated any mob violence, but because of the insecurity of his jail. He testified that the jail of Bed Biver County was anything but a safe one in which to place prisoners. The examination took rather a wide range, and to meet defendant’s case made by his witnesses—that there was a great deal of excitement at the time, and the articles referred tb as having been published in the papers intensified that feeling, the State introduced a list of witnesses who had lived in the county from about five to sixty years, from practically all sections of the county, who testified that there was no such feeling of prejudice in the county as would debar appellant a fait and impartial trial. They practically agree that at the time of the killing, or just after its commission and discovery, there was more or less talk in the country predicated very largely upon the newspaper statements; it was shown that appellant was almost an entire stranger in the county, lived in the extreme eastern edge of it, and was not known out of that immediate neighborhood. Some of the county officers and ex-officers were placed upon the stand and testified they .had never heard of him at the time this killing occurred, although they had canvassed the county electioneering among the people. It is practically made to appear that all the talk and conversation, Or nearly all of it, in regard to the homicide occurred immediately after it occurred and rather incidental to the statement in the papers. Whatever feeling had been engendered at that time had practically passed away, and it had not been discussed more than any other murder case would have been discussed for a considerable period of time: in fact from shortly after the arrest of appellant, these witnesses practically all agree there was no prejudice in the county against appellant such as would prevent a fair and impartial trial; that there were anywhere from 5,300 to 6,000 qualified jurors in the county, and 'whatever of prejudice may have or was then existing against accused, was .confined mostly to the immediate section where the homicide was committed, to wit: the eastern end of the county. Without going further into the statement of the evidence, and its details, which was very full :and covered every section of the county, we do not believe the evidence.
was of such a character as required a charge of venue. The evidence is not as strong showing or tending to show the prejudice in this case as in many others that have come before this court, in which the action of the trial court was sustained in refusing to change the venue. The cases relied upon by appellant, to wit: Gallaher v. State, 40 Texas Crim. Rep., 296; Randle v. State, 34 Texas Crim. Rep., 43; and Moore v. State, 79 S. W. Rep., 565 are not in point. That is, the case here made by the facts is not brought within the rule laid down in those cases.
It is contended that the evidence is not sufficient to justify the verdict. To this contention we cannot agree. The evidence discloses that appellant and his wife were living together alone at the time of the killing; that their marital relations were as pleasant as ordinarily between husband and wife; they were seen the day before the homicide at night between dinner and sundown working together on a fence. This was on Wednesday evening, and she was never seen afterwards alive. Her body was found on Friday, buried in the garden, between two rows of onions. Her body was arrayed in her night gown and wrapped in a quilt, and showed that she had been choked. There was a large knot on her forehead, also one behind the ear, and her skull was crushed in the back part. One or two of the witnesses testified to the fact that her neck was broken. After the homicide, which occurred sometime during the night after their retirement, appellant had buried the body, and then gotten his horse, hitched it to the plow, and plowed out the onion-patch, seeking to obliterate all signs and evidence of her burial place. The rows of onions were about three feet apart, and the digging of the grave was done with such expertness that the onions in the rows upon either side, except one onion, was not broken or in any manner disfigured. He returned his horse to the barn, after finishing the plowing, placed his wife’s saddle upon her pony, and turned him on the outside of the enclosure. This horse was seen some distance away the following morning returning in the direction of appellant’s home with his wife’s saddle on him. Appellant was with the hunting party, and suggested one or more theories as to her absence; among others, that he believed she had run away or eloped with another man. All of that immediate section of country was investigated and water-holes examined fór the missing woman, until Friday, when her body was found buried in the garden. His confession was also introduced to the effect that on the night of the homicide he and his wife had agreed to go fishing in the little creek near the house where they lived; that his wife finally declined going on account of being 'tired. She retired, and he states he went to the creek and fished a little while; returned to the house and went to bed in the same bed with his wife; that he was drinking some, and when he awoke during the night he was choking his wife and continued to choke her until she was dead; that he then buried her in the garden and plowed out the onion patch in which she was buried. Ho reason or motive is assigned by him. Hor does the testimony anywhere show a motive. The singular phase of the case, perhaps, is found in the fact that there
is no motive developed; but the manner of the killing and the attendant circumstances justify the jury in assessing the highest punishment. There is one other fact that may be stated here, perhaps; that is, that there was a mallet found in the room which showed that it had been either scraped with a knife or “sandpapered” to obliterate evidence of blood. Outside of two or three little spots of blood on one of the pillows and on the mallet there was none found in the room where the killing occurred. Appellant and his wife were about the same weight: she weighed 130 to 140 pounds, and he about 140 or 145 pounds. The evidence is sufficient. The judgment is affirmed.
Affirmed.