101 S.W. 242 | Tex. Crim. App. | 1907
Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life; and brings the case up on appeal.
This case was before this court at a former term, and was reversed. See 78 S.W. Rep., 1069.
The circumstances summarized show that Hamp McDonald lived in rather a secluded part of Henderson County near the Trinity River, and kept a ferry for crossing on said river, and there were few neighbors *188 in that community, Bill Follis living perhaps nearest to McDonald. Appellant, Jim D. Follis, was a nephew of Bill Follis, and during the fall of 1902, was working for McDonald and assisting him in connection with the ferry. Sometime in October McDonald disappeared. Some inquiry was made on account of his absence, and appellant reported that he had gone to the San Antonio fair, and would not likely be back for two weeks. Appellant, and his uncle, Bill Follis, and one Dock Brunson, were arrested charged with the offense of killing deceased. Appellant made a confession in which he admitted killing the deceased, which he claimed was at the instigation of his uncle Bill Follis. The testimony of Bill Follis and his little son Will Tom Follis constitutes the principal evidence against appellant. The testimony of Bill Follis is to the effect that a day or two after the alleged commission of the offense, Jim Follis (appellant) told him that he had killed McDonald, but witness thought it was a joke. Some two weeks subsequent to this appellant, in company with him and his little boy Will Tom, went down to a raft on the river; appellant went in on the raft and pulled up a human body, which had the appearance of having been in the water sometime; the flesh was off the face, and it was not recognizable except they stated the body had on some clothing similar to that worn by deceased, such as his pants and shoes. They made no examination of the body, and appellant fastened a piece of iron, which he had brought along, to the body and sank it back into the water. According to appellant's confession, he killed McDonald by striking him in the head with an axe. They were going down the river in a wagon, McDonald driving. Appellant had his axe with him and struck McDonald two licks in the head, which caused his death. He then got his uncle Bill Follis, and together they threw McDonald's body into the river with a maul tied to it, which caused it to sink. He also stated about taking a watch and chain from the body of McDonald and burying it near a tree, which was subsequently found by the sheriff buried where appellant told him he would find it. The motive for the homicide, as appellant stated in his confession, was robbery; that is, his uncle was to get the property of McDonald, and he was to get one hundred dollars. It also appears that Dock Brunson was in the scheme; that either he (appellant) or Dock was to do the killing, as his uncle said they would not be suspected, while he would be. Appellant also states in his confession about getting some of the proceeds of McDonald's property, and about Brunson some of the horses. This is a sufficient statement of the case to discuss the assignments of error.
We will not discuss the application for continuance because the questions involved in this application are not likely to arise again. We would observe, however, that the court had a right to know whether appellant desired to wait for the witness, from whom he received a telegram, during the trial, that he had started for the trial; when appellant's counsel refused to state that he desired to wait for the *189 witness until the next day, the court had a right, as explained by him, to proceed in the absence of the witness.
We believe that the court properly received evidence of the confessions of appellant. These confessions came through the sheriff, and on a predicate laid by him, which does not appear to have been directly controverted by appellant. There was enough in the statement of the sheriff, however, to suggest a theory as to said confession not being a free and voluntary confession, notwithstanding the warning given appellant; and in such state of case, a charge should have been given to the jury on this subject; that is, some such charge as requested by appellant on this subject should have been given. We do not believe it was competent to prove what the sheriff and his deputy Grayson believed as to what would be done with appellant after he made a confession; that is, that he would be given immunity. They could testify as to all that was said and done in that connection either by themselves or the officers, but not as to what they believed would be done.
The charge of the court on accomplice testimony relates to the witnesses Bill Follis and Will Tom Follis. The court assumed in the charge that Bill Follis was an accomplice, which was correct, and submitted to the jury as to whether or not Will Tom Follis was an accomplice, which we also think was correct. This charge is lengthy and is more or less complicated, and we believe is subject to some of the criticisms indulged in by appellant. We call attention to that portion in connection with subdivision 18, which, at the conclusion, uses this language: "* * * but this does not mean that the confession of a defendant on trial cannot be looked to for corroboration of the testimony of an accomplice, when such confession is so corroborative and proven by other witnesses than an accomplice." This charge, it would appear, is on the weight of testimony.
The charge of the court with reference to the corpus delicti and the proof necessary thereto, is also complained of, and it is insisted that appellant's special charges on this subject should have been given. In this connection, it is further insisted that the evidence of the corpus delicti is not sufficient. Inasmuch as we believe the latter contention is well taken, we will discuss that question which will render a criticism of the charges given on this subject unnecessary. The corpus delicti, in a case of this character, consists in the establishment by evidence of the death of a human being by some criminal act or agency of another, and in this connection it may be stated, that our statute requires that "no person shall be convicted of any grade of homicide, unless the body of the deceased or portions of it are found and sufficiently identified to establish the fact of the death of the person charged to have been killed." See Kugadt v. State, 38 Tex.Crim. Rep., and Gay v. State,
We will notice one other assignment; that is, that which relates to the verdict. It appears from appellant's bill of exceptions on this subject that the jury returned into court with the following verdict: "We the jury find defendant guilty and assess his punishment at ninety-nine years in the penitentiary," whereupon the court told the clerk to pass the verdict to him, and informed the jury that the verdict was not correct. The court then wrote a verdict for the jury, as follows: "We, the jury find defendant guilty of murder in the first degree and assess his punishment at imprisonment in the penitentiary for life," and handed it to the foreman and had him sign same, and then had the verdict read, and asked the jury if they agreed and they all agreed to the verdict. This was all done in the court room in the presence of the court without sending the jury back to again deliberate on their verdict. This was improper, being a usurpation on the part of the court of the functions of the jury. The verdict which they brought in was not a verdict of murder in the first degree, that part of the verdict assessing the punishment clearly indicating that it was not. The court had no right to dictate to the jury, as appears to have been done, the verdict fixing the degree which they should find in the case; not only this, but assessing the amount of punishment, — indeed a radical change of the verdict which had been returned by the jury. For this error alone we would reverse this case. We would further observe that unless further proof, which it seems is not accessible, can be furnished by the State on another trial, that a re-trial would seem to be unnecessary. Appellant may be guilty, and evidently the circumstances look very suspicious against *192 him, but under the authorities the evidence of the corpus delicti is not sufficient to support a verdict against appellant.
The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.