Kugadt v. StateKugadt v. State
An application for continuance will not be granted for absent testimony which is immaterial, and it will be held properly overruled on motion for a new trial where the absent testimony coincides with the theory of the State.
2. Conduct of the Trial—Excluding Crowd from Courtroom.
On a trial for murder, where the evidence established that it was committed on barely sufficient for the witnesses and two venires that were present, it was not error for the court to have all other persons excluded to make room for said witnesses and venires.
3. Murder—Proof of Venue.
On a trial for murder, where the evidence established that it was committed on N. Y. Creek, and the body was brought to and cremated at J. Creek, and that both said creeks were in the county of W., the venue was sufficiently shown to be in W. County, where it did not appear said creeks ran also partly within the limits of other counties.
4. Juror—Formed Opinion—Competency.
Where a juror on his voir dire examination stated that he had expressed an opinion about the case in a jocular way, but that he could give defendant a fair trial, and he was not challenged for cause nor otherwise, though defendant’s challenges were not then or afterwards exhausted; Held, defendant could not complain that said juror sat upon his trial.
A confession to an officer is properly admitted in evidence where it is shown that the officer properly warned the defendant, and that afterwards the statements or confession were freely and voluntarily made by defendant to said officer. Nor is a confession rendered inadmissible from the fact that after it was made the officer told defendant that if he (defendant) testified on the trial what he had told him, he might get off with a life sentence.
6. Examination of Witness—Practice.
Where counsel, on the examination of a witness, has already gone over the same ground twice, it is not error for the court to refuse to permit him to go over it again.
7. Argument of Counsel—Denunciation of Defendant as a Hyena.
For the district attorney, in his argument, to denounce the defendant as “a hyena,” should not be allowed in any case, and it is unfortunate he should travel out of the record to abuse or vilify a defendant on trial. But in this case, inasmuch as it is made to appear that as soon as exception was taken to the remark, the district attorney took it back and the court instructed the jury to disregard the same, it does not afford ground for reversal.
8. Confessions—Special Instructions—Modification of.
Where the defendant requested the court to instruct the jury: “You are instructed, that when the admission or confession of a defendant is introduced in evidence, the whole of such admission or confession is to be taken together, and the State is bound by them unless they are shown by the evidence to be untrue; and, unless the State has shown the statement of defendant as to how the killing took place, to be untrue, you should acquit him.” Held, no error for the court, by modification, to add to said instruction, the following: “That such fact, like any other fact, may be proved by evidence direct or circumstantial.”
9. Special Instructions—Refusal of.
It is not error to refuse special instructions where the general charge effectually covers so much of the requested instruction as embraced law pertinent to the case.
10. Murder—Corpus Delicti—Confession.
It is essential to a conviction for any degree of culpable homicide, first, that the deceased should be shown to have been killed; and second, this killing should have been proved to have been criminally caused by the act or agency of the defendant. Unless the corpus delicti in both these respects is proved, a confession is not, by itself, enough to sustain a conviction.
11. Same.
An extrajudicial confession standing alone is not sufficient proof of the corpus delicti. But a confession is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction in the minds of the jury beyond a reasonable doubt. And such suppletory evidence need not be conclusive in its character.
12. Same—Identification of Deceased—Circumstantial Evidence.
Our statute,
13. Same—Proof that Death Was Caused by Act or Agency of Defendant—Flight.
On a trial for murder, it is indispensable to a valid conviction to prove that the death of deceased was occasioned by the criminal acts or agency of the defendant. Such proof can be made by circumstantial evidence. See facts stated in the opinion which, though circumstantial in character, are held amply sufficient to establish the
HURT, Presiding Judge.—Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.
As the principal questions presented involve the sufficiency of the proof as to the corpus delicti, we will summarize all of the testimony bearing on this subject. The deceased, Johanna Kugadt, was an elderly maiden sister of appellant. She came from California to live with him, at his home in Washington County, in the year 1893. In the spring of 1894 she went to California on a visit to her relatives, and in the fall of the same year she returned to her brother’s (appellant’s), where she continued to reside until the time of her death. Appellant resided on a farm in Washington County, about two and one-half or three miles west of the town of Washington, and about eighteen miles from Brenham. By the direct route from the town of Washington to Brenham the distance is twenty-one miles; going by Whitman, which is a divergence to the south of the direct route from Washington to Brenham, is twenty-three miles; and going from Whitman by a still lower route, called the “Goodwill road,” and thence west, back into the Washington and Brenham road, is about three and one-half miles further. It is nine miles from Brenham to where the road to Rock Island leaves the Washington and Brenham road. It is seven and one-half miles from Brenham to Kuykendall’s Creek, three miles from Brenham to New Year Creek, four miles from New Year Creek to Earlywine’s gin, seven miles from New Year Creek to Abner Roberts’, three miles from Jackson Creek to Kugadt’s house, and thirteen miles from Brenham to Jackson Creek. These distances are mentioned, as it is important that they be stated, because the witnesses testify as to the defendant’s being at these various points at different intervals of time. The evidence shows that Miss Johanna Kugadt was possessed of some $400 to $600, which she had loaned out in the neighborhood. Some weeks before she intended leaving for Europe, she, with her brother (appellant), collected in this money. Her trip to Europe appears to have been contemplated for two or three months prior to the time of her supposed departure. In August appellant wrote to one Winkleman, at Brenham, with refer
On Monday, October 19th, very early in the morning, appellant, driving a two-horse wagon, containing a trunk and a box, accompanied by an elderly lady dressed in black, was first seen at Whitman, a little country store about two miles from his residence, en route, as he stated to the witnesses Buchanan and Ewing, to Brenham. At this point he got out, and bought a bottle of whisky and some cigars, and resumed his journey, taking the lower, or “Goodwill,” road. Ewing told him that was one and one-half miles out of his way. He remarked that he was going that way in order to avoid a bad place in the road. Ewing hallooed to him that the place had been fixed, but appellant proceeded on his way. Buchanan, who immediately left, going towards his home, which was on the Goodwill road, overtook him before he had turned off towards the Washington and Brenham road. About 8 o’clock Richard Mackey and George Isaacs met appellant in the road, driving his wagon, with the before-described lady sitting by his side, and with a trunk and box in the wagon. This was at a point near where the Rock Island road leaves the Brenham and Washington road. A little later than this, Mrs. Max Geisler, who lives on the Brenham and Washington road at the Wilborn place, saw the defendant, and, as she says, “his sister,” pass her house, going in the direction of Brenham. She relates
About 1 o’clock p. m., defendant was seen going from the direction of Brenham and towards Washington. The first parties who testify as to having seen him were Henry Countryman and George Harbers. They testify, in substance, that they were in camp in New Year Creek bottom, some little distance from the road, and that appellant stopped his wagon some 150 yards from where they were camped, and walked towards their camp. He appeared to be eating something, and one of them states that he was eating a piece of turkey, and asked for some water. He drank some coffee with them, and remained there some thirty or forty minutes, when he went back to his wagon, and proceeded on his journey in the direction of Washington. He drove across a dump, which brought him within forty or fifty yards of one of the witnesses, and he states that he was driving towards Washington by himself, that he had a box or trunk in the wagon with him, and it was between 1 and 2 o’clock in the afternoon; that it was an old top box or trunk. Thomas Harbers, who was at Earlywine’s gin, saw him pass said point on his return about 2 o’clock in the afternoon. No one was with him. W. H. Wade, who lived three miles west of Jackson Creek, on the Washington and Brenham road, nine miles from Brenham, saw defendant pass his house on the Monday evening, driving a wagon by himself, and that a box or trunk was in the wagon. West Baber, the next witness who saw the defendant on his return, met him about Jackson’s Creek (the creek on which the body was subsequently found). Appellant then appeared to be very warm and thirsty, and gave witness a dime to get him some water. When they approached Mrs. Lawson’s house, witness went in to get appellant some water. Appellant followed him, and drank a great deal of water, claiming to be very thirsty. This witness noticed blood in the bed of the wagon. He states: “I overtook Mr. Kugadt near the creek. He passed me twice on the road. The first time I got the water for him, and the second time I stopped to talk to Sister Chase. The spots were in the bottom of the wagon, and on the right-hand side of the back. I saw no grease spots. It was blood.”
On Thursday, the 22d of October, some time in the evening, one Lem Harris was hunting hogs in Jackson Creek bottom, and about 400 or 500 yards to the left of the Washington and Brenham road, up the creek, and about 150 steps from the creek, in a brush heap, he discovered the charred remains of a human body. He also narrates that, going up the bed of the creek to a point opposite where the body was found, there appeared the tracks of a wagon going up to that point, and thence returning. This witness describes the condition of the body, and the remains on the fire. He says he saw hinges, and crooked irons, and a piece of dress, hairpins, hatpins, and a piece of a corset; and a coil of hair was burned into a coal. About two dozen hairpins were found in the coil. There were some buttons and feathers. Here a number of articles were shown witness, and he identified them as being the same as those found at the place of the fire. He narrates that the skeleton was complete; the cheeks were burned, but had not fallen in; the skeleton was altogether not cracked, nor anything broken about the face or head, but some places burned to ashes; he lifted the skeleton up by the head. The backbone seemed to be about three feet long; that he immediately went after one Hogan, and, as soon as he got him, sent for the magistrate. Witness also identified the lock found there, and three or four crooked irons, and two hinges.
R. G. Moore, the magistrate, testified: That he came at the instance of Lem Harris. That the remains were beside a log, and that you could see signs where the parties had picked up logs for the fire. The skeleton was perfect down to the knee joints. The foot parts were turned towards the head. This witness also identified hinges, nails, irons, hair pins, buttons, feather, and lock as the same found with the skeleton. That he held the inquest on the 22d of October, 1896. That he never saw Kugadt after that. That Dr. Brewer, whom he sent for, came there, but did not give in his testimony at that time. Witness identified and
Dr. Brewer states that he examined the skeleton, and “that it was the body of a female. The joints were hard. The ball and socket joints were not turned around. The head of the body was lying southwest. I lifted the skeleton up, and saw that all of the hair, skin and flesh were burned off the head, and it was badly parched. The head was not crushed; it was perfect. The spinal column was not broken. Could find nothing on face, head, or body that indicated violence. Found the heart, liver, and a womb. The frame of the body was small.” Witness said: That he knew Kugadt, but never saw him after the body was discovered. That the place looked like there had been a very large fire there. “That the ribs were badly burned, but were in position. The legs were badly burned, but were in position. The bones, from the hip to the thigh, were badly burned, almost to ashes. The knee joints were burned apart. The pelvic bones were very badly burned, not enough to be apart, except the front part. It was shelled from the outside. There are six or eight bones in the pelvis. They are the ischium, ilium, and coccyx. I can’t name the rest—have forgotten them. The male pelvis is not so round as the female. I can not mention the exact measurements of a female pelvis. You must have all the parts of the pelvis to tell the difference between a male and a female pelvis. I found all the pelvis bones, but I can not name them. The largest bones in the body, I think, are the pelvis bones—not always. I found a womb. The coverings of the abdominal cavity are muscular tissue, three or four, skin, and the peritoneum. I don’t remember the rest. Can not tell the thickness of the covering of the abdominal cavity in an average person. The uterus was cooked, and was shrunk. In an average uterus, the weight would be from four to five ounces; the dimension is three inches long and one and one-half inches wide. The pubes were shelled off, but the womb was intact. The womb was protected by the spinal column.”
Two witnesses testify that they saw the remains of a burned trunk near the house of Kugadt, some 150 or 200 yards therefrom, in a ravine; and two witnesses (besides the ones previously mentioned) testify that they saw the appearances of blood in the bed of the wagon some few days after the inquest was held.
The testimony shows that, as soon as publicity was given to the discovery of the body (which was immediately), the appellant disappeared from his home. He was sought for assiduously, but could not be found by the neighbors or officers. He was not to be found at home. Some three months after this, appellant was arrested at Napa, Cal., and at that time was under an assumed name. He was extradited, and brought to Texas by D. E. Teague, the sheriff of Washington County. Teague testified that he duly warned appellant, as follows: “I warned him that
Appellant shows, on the cross-examination of the witness Dr. Brewer, and also by Dr. Barton, that the effect of a wagon wheel running over the head would ordinarily cause concussion of the brain and hemorrhage of the eyes, ears, nose, and mouth. It is possible, under such circumstances, that a person might live a short time and be able to speak. Dr. Barton also testified that persons might be overcome on account of an accident happening to some near and dear one, for the time being lose their minds, and do ridiculous things. A number of witnesses testify to the kindly relations existing between defendant and his sister, and also a number testified to the good reputation of appellant, as being a peaceable and law-abiding citizen. He also offered some testimony to the effect that he had some money of his own. One witness testified that on one occasion in September he paid him $10, and saw $7.50 paid to him. Langhammer testified that about the 1st of October he paid defendant something less than $50.
Before discussing the corpus delicti, we will notice some other assignments of error. Appellant complains that the court erred in refusing to change the venue on his application. Issue was joined upon this matter before the court, and evidence was heard pro and con. It does not appear to us that the court abused its discretion in overruling said mo
Appellant assigns as error the action of the court in overruling his motion for a continuance, and this is made one of the grounds of the motion for a new trial. The motion was based on the absence of a number of witnesses. However, appellant only relies on the absence of Mrs. Dill and J. Lenorowitz of Washington County, and Jesse Lott of Grimes County. By Mrs. Dill, appellant proposed to show that he superintended her business and handled large sums of money for her. It is not shown when this occurred, and, as presented, we do not regard it as material. By Jesse Lott, it was proposed to show that said witness paid defendant certain sums of money on October 15, 1896, and that this is a part of the money seen in the possession of the appellant after the deceased is alleged to have been killed. In answer to this, it is sufficient to state that an amount of money is not shown to have been in the possession of the defendant after the homicide. By Lenorowitz, appellant states that he expected to prove that he passed appellant and his sister, Johanna Kugadt, on Monday, the 19th of October, 1896, and saw them lunching in New Year Creek bottom, and that the road was a public thoroughfare, and at a place not affording concealment for a murder. This testimony coincides with the theory of the State. We fail to see how it could have been of any benefit to appellant.
As explained by the court, nothing occurred during the trial that would indicate that appellant did not have a fair and impartial trial. The exclusion by the judge of the crowd is satisfactorily explained. As shown by him, the court room was barely sufficient for the witnesses and two venires that were present on that occasion, and the others were excluded to make room for them. He further shows that there was nothing like a mob present, and nothing to indicate such.
The contention of appellant that the venue was not sufficiently shown is equally without merit. The proof shows unequivocally the location of New Year Creek and Jackson Creek to be in Washington County; and the murder evidently occurred at New Year Creek bottom, and the body brought and cremated at or near Jackson Creek. These creeks, as stated, are both shown to be in Washington County; and, in the face of the proof, it will not be presumed, as appellant insists, that all of said creeks were not contained in the county.
Nor does it occur to us that there is anything in the objection of the appellant to the juror McIntyre. On his examination as a venireman, he stated to counsel that he had expressed an opinion about the case in a jocular way, but that he could give the defendant a fair trial. He was not challenged for cause, nor otherwise, though defendant’s challenges were not then or afterwards exhausted.
We do not think any error was committed by the court in admitting the testimony of D. E Teague as to the confessions made by defendant to him. His testimony shows that he duly warned appellant before he
It appears that, during the argument, the district attorney alluded to the defendant as a “hyena.” On exception, this remark was taken back, and the court instructed the jury to disregard the same. We can not regard it but as unfortunate in any case when an officer prosecuting shall travel out of the record to abuse or vilify a defendant on trial. This is not the first occasion we have been called upon to animadvert on the remarks of the district attorney (Maynard) who prosecuted this case. We can not refrain from insisting that the court below should take steps to prevent a recurrence of this character. Such denunciatory terms should not be allowed in any prosecution. But, as presented here, it does not afford ground for reversal.
Appellant excepted to the action of the court in modifying or adding to the special charge requested by him on the confession of appellant. The charge requested was as follows: “You are instructed that, when the admission or confessions of a defendant is introduced in evidence by the State, then the whole of such admission or confession is to be taken together, and the State is bound by them, unless they are shown by the evidence to be untrue; and, unless the State has shown the statements of defendant as to how the killing took place to be untrue, you should acquit him.” The court added to this requested instruction the following: “That such fact, like any other fact, may be proved by evidence, either direct or circumstantial.” It occurs to us that there was no error in this procedure on the part of the court. The requested charge was certainly very liberal to the defendant; nor could he object that the jury, in that connection, were told that the falsity of the explanation could be proved by direct or circumstantial evidence.
Appellant asked the following charge to be given to the jury: “You are instructed that the State must prove with particular clearness and certainty, and beyond a reasonable doubt, the fact of the death of Johanna Kugadt, and that her death was caused by the criminal agency of Charles Kugadt, and that a confession of defendant is not, of itself, a sufficient proof of this part of the corpus delicti.” The court refused to give this charge, and appellant reserved his bill of exception. The fourteenth subdivision of the charge of the court, in our opinion, effectually covered so much of the charge requested as was law and pertinent to this case.
The above cases not only show that the body or portions thereof may be identified as that of the deceased by circumstantial evidence, but the corpus delicti itself may also be proved by this character of testimony. In Martin’s case, supra, the proof of identity was established in very much the same way as that pursued in the present case. The body of the deceased, when found, had been burned beyond recognition; but it was identified as that of the deceased by the size, some buttons, buckles, pieces of clothing, collar button, and slate pencil—some of which were shown to resemble articles belonging to the deceased. In Williams’ case, supra, the deceased was a woman, and, as a circumstance to identify the charred remains found as those of the deceased, certain hair pins were introduced in evidence, and it was proved that she was in the habit of wearing such
Now, the first question that presents itself to us is whether or not the remains—that is, the portions of the skeleton found on Jackson Creek—were the body of Johanna Kugadt. There is no question but that the remains found were those of a human being—of a female; the skeleton answering the general description of Johanna Kugadt. This is made certain by the testimony of Dr. Brewer, an expert, and is supported by other evidence found on the ground and at the place where the body was cremated, to wit, pieces of corset, hair pins, a coil of hair, hat pins, and the iron fastenings, answering the description of those that had formerly been on her traveling chest. The remains, when found, had evidently been recently cremated; portions of the flesh still adhering to the bones. These remains were found on the route pursued by defendant and deceased (as she returned with him) on their journey from New Year Creek, some three miles from Brenham, towards their home. She was last seen alive on Monday, in the company of appellant; and these remains were discovered, in the condition above stated, on Thursday of the same week. This testimony, in connection with the other circumstances of the case, together with appellant’s confession, afforded ample proof that said remains were those of Johanna Kugadt.
The remaining question, and the one fraught with the most difficulty, is, did Johanna Kugadt, the deceased, come to her death by some criminal means or agency, and was this criminal means or agency the act of appellant? the rule being that in every criminal prosecution, before a conviction can be had, the State is required to prove two things: First, that a crime has been committed (in this case the death of Johanna Kugadt by some criminal agency); and, second, that her death was caused by the person (appellant) charged, and none other. There is some conflict in the authorities as to whether or not the corpus delicti can be
Now, to restate: A dead body, or its remains, having been discovered and identified as that of the person charged to have been slain, the basis of the corpus delicti being thus fully established, the next step in the process, and the one which is to complete the proof of that indispensable preliminary fact, is to show that the death has been occasioned by the criminal acts or agency of another person. See Burrill Circ. Ev., p. 682. Now, as stated above, this proof can be made by circumstantial evidence. In this case, the dead body of Johanna Kugadt, which, we have seen, was sufficiently identified, was found. That she came to her death by violence, aside from other testimony in the case, is suggested by the fact that, after defendant passed Jackson Creek, the point where the evidence shows the body was removed from the wagon, blood was seen in the bed of the wagon. This would indicate that her death was caused by violence. This, however, would also accord with the theory, set up by appellant in his confession, that she came to her death by a violent accident. The body itself was partially consumed by fire. No marks of violence were found thereon. Her death, however, could have been caused by violence in many ways without leaving any marks upon the
It was shown on the trial that the death could not have happened in this accidental manner. This account of the manner of her death, shown by an inspection of the skull of the deceased to have been false, we consider a very strong criminative circumstance against appellant, and goes far towards destroying the hypothesis on which he placed his defense; that is, that her death occurred by an accident. In this connection we would also recur to his extraordinary conduct in connection with the death of his sister as related by him. He states that when it occurred he became excited, and that he first started with her remains to a friend’s in that vicinity, and that when he found she was dead he changed his mind and concluded to carry her remains home. On the way, he again changed his mind, and concluded to cremate her remains, and he sought a secluded spot in order to accomplish this purpose. This is all explained by him on the ground that, when he found she was dead, he became apprehensive that her murder would be attributed to him. But it will be borne in mind, in this connection, that shortly after the time when the accident occurred, according to his statement, he approached a camp in New Year Creek bottom, stopped and chatted with the persons there, ate a piece of turkey and drank a cup of coffee. No evidences of undue excitement were then apparent to the witnesses. And, moreover, on the entire trip from there to Jackson Creek, some seven or eight miles, though met by several witnesses, no indication of undue excitement was apparent to any of them. Yet, according to his statement, he was overcome by the accident to such an extent as to be deprived of his ordinary sanity, and was rendered apprehensive that her death would be charged to him. We fail to comprehend, in the absence of a guilty conscience, how appellant should have suddenly become overwhelmed with the thought that he would be accused of the murder of his sister. So far as the testimony indicates, their relations were entirely agreeable, and he was then en route with her to Brenham in order that she might embark for Europe. Again, it may be asked, why did he resort to the concealment of her body? Is this consistent with innocence, or is it explained on the theory that he was deprived of his reasoning powers by excitement? The books lay it down that concealment, if not anticipated beforehand, is one of the immediate resorts after the perpetration of a
Another strong circumstance, indicative of guilt, is made manifest from this record. It was in evidence that the deceased, when she started for Brenham en route to Europe, had $400 to $600 on her person. According to appellant’s own confession, he got at least $200 of this money; and how much more we are not informed. Evidently if, amid his excitement, he was thoughtful enough to take from her this amount, we can well conceive that he took from her all her money. The motive of gain is a powerful impellant towards the commission of crimes, of which the records of the criminal courts afford ample testimony; and even relationship has not been found a sufficient deterrent against human greed. Cases have occurred in which the tenderest ties have afforded no safeguards against murder, where the object has been gain. See Burrill Circ. Ev., pp. 306, 321. Appellant attempted to rebut this idea by showing that he had money of his own. But it is remarkable how flimsy the proof was on this line. In this connection, we would observe that, notwithstanding the relationship of brother and sister existing between them, and she living at his house, he is not shown to have had any control over her finances. She managed her money affairs herself. That he had money after this homicide is manifest, for he had means with which to make his flight from Texas to California. This circumstance of flight, too, is a strong incriminative fact, in connection with other facts in this case. When the first faint breath pervaded the neighborhood that the remains of a person had been found in Jackson Creek bottom he fled incontinently, and in his flight disguised himself by shaving his whiskers. He was not contented with seeking some secluded spot in the vicinity, where he could conceal himself until the excitement might subside; but he fled the State, and secluded himself in California, and disguised his identity by changing his name. All these facts and circumstances do not agree with the accident, as claimed by him, through which his sister lost her life. We are not compelled to take his statement as true, but we try it according to the known rules of testimony, and we try his conduct in that connection with the known rules of conduct in human experience. It may be true, as testified by one of the witnesses,
In our opinion, the circumstances of this case identify the remains found as those of Johanna Kugadt, and they establish beyond any reasonable doubt that the appellant, by some means not disclosed in this evidence, murdered his sister while journeying with her to Brenham, under pretense of sending her to Europe, and that he did this for the purpose of robbing her of a few hundred dollars, which she is shown to have had at that time. The court gave appellant a fair and impartial trial, presenting every issue in the case arising from the evidence. The jury have found him guilty of murder in the first degree, and in our opinion the evidence amply sustains their verdict, and the judgment is affirmed.
Affirmed.
Henderson, Judge, concurs.
Davidson, Judge.—I agree to the conclusion reached, but do not agree to all the reasoning of my brethren on the question of corroboration. I believe the facts sufficient in this case.
[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]