68 S.W. 279 | Tex. Crim. App. | 1902
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ninety-nine years.
The evidence is unusually voluminous. A sufficient statement of the case for the disposition of the case is in brief as follows: On the night of and preceding the homicide there was quite a crowd of people in and around a certain business house, where there was considerable drinking. Some of the parties were very much intoxicated. Deceased was drinking to a considerable extent. During the night, as contended by the State, appellant, Dorsey and Hatcher induced deceased to go with them to an outhouse for the purpose of engaging in a gambling transaction, and his money was either won by the parties or taken from him by force before his death, or taken from his body after death. Appellant's confession was admitted, over his objection, to the effect: That while at the outhouse deceased used some very insulting language towards appellant; that this brought on a personal difficulty between them, in which appellant choked deceased and struck his head against the floor; that subsequently appellant, Hatcher and Dorsey left the outhouse, leaving the deceased asleep upon the floor; that when appellant and his comrades left they went to the residence of Dr. Bridge, for the purpose of having a wound upon appellant's arm dressed; that while there he left $25 with the physician. Deceased had some $50 or $60, some of which corresponded in size with the bills that were left by appellant with Dr. Bridge. Under this confession, as well as under the statement of the accomplice Dorsey, made to Ben Hall, deceased was alive at the time they left the outhouse, where his body was subsequently found partially burned. These parties left this outhouse about 4 o'clock, arriving at the residence of the physician about 4:15 or 4:20, and remained at the doctor's office until in the neighborhood of 6 o'clock, when they left. After going a short distance, appellant became so much intoxicated that he fell into a ditch, with his heels at the top of the ditch and his head in the bottom, where he passed into a drunken sleep and stupor from which he was aroused by some of the witnesses the following morning. About 5 o'clock in the morning, as near as the witnesses could place the time, a light was seen in an outhouse where the body of deceased was subsequently found. The theory of the State was that there was a conspiracy formed by Dorsey, Hatcher and appellant *50 to secure the money from deceased, and it was in pursuance of this conspiracy that death occurred, as well as the burning of the body of deceased. If the confession of appellant be true, or be believed by the jury, it would hardly be contended that appellant did the killing especially for the purpose of robbery. This evidence was placed before the jury by the State. If, after the beating and choking of deceased by appellant, and at the time of their leaving the outhouse, deceased was alive, appellant would not be guilty of homicide under any theory of the State. If appellant beat and choked deceased, from which he subsequently died, this arose from no theory of robbery or theft of the money of deceased, and from no theory of murder in the perpetration of robbery or theft, but it grew out of a personal altercation brought about by the insulting conduct and language of deceased towards appellant. The law in regard to this state of the case was not given, but should have been. If there was a conspiracy to rob and murder deceased, or to rob or murder him, and the killing did not occur in pursuance of either phase of such conspiracy, but was the result of the fight between appellant and deceased on account of the insulting conduct mentioned above, it would very clearly suggest that appellant could not be guilty of murder in pursuance of the conspiracy to rob or murder. If in fact, or if the jury believed from the evidence, that deceased was alive at the time appellant left the outhouse, and that his death was due to any other cause than the act of defendant, he would not be guilty of any phase of homicide. These matters were suggested by the evidence and should have been distinctly charged upon by the court.
Exception was reserved to the thirty-third section of the court's charge, as being a charge upon the weight of evidence in regard to the conspiracy and the assumption of the fact that the conspiracy had been shown. This charge is in substance, and in almost exact language, the same as that for which Hudson's case was reversed at our recent Dallas term. See Hudson v. State,
There are other serious questions suggested for revision, but as they will not arise upon another trial as presented by this record, we pretermit a discussion of those matters. However, we would say, in regard to the motion to change the venue, that, if the testimony upon another trial is as shown by this record, we are of opinion that the venue should be changed. It is seldom the case where the testimony is stronger, tending to show prejudice against the accused, than as shown by the record here. The application for continuance may not be presented upon another trial; and if so, it will come in different form than as presented by this record.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *51
Dissenting Opinion
A majority of the court predicate a reversal of this case upon two propositions: (1) That the court should have given a charge to the jury in favor of appellant, predicated on his confession introduced by the State; (2) because the court's charge on conspiracy was erroneous.
The learned judge gave a charge on the theory of appellant's confession, which appears to have been overlooked in the opinion, which I think, in connection with the court's charge on the same subject, was adequate. The testimony as to appellant's participation in the homicide, it occurs to me, was overwhelming. However, the State for some purpose introduced a meager statement of appellant, the introduction of which was contested by him. This statement tended to show that the altercation arose between appellant and deceased over a game of cards, and that on deceased abusing appellant he assaulted him; but the assault, according to his statement, was not of a serious character, as when he left, which was some three or four hours afterwards, deceased was quietly sleeping on the floor. They all left and went to the village near by together. The evidence shows that here they went into a doctor's office and remained some time; the parties leaving there about daylight. This was about 6 o'clock or after, near daylight. Shortly after they left the doctor's office, Dorsey and Hatcher parted from appellant, who fell by the wayside in a drunken state. The suggestion is (not borne out by any evidence) that Hatcher and Dorsey may have gone back to the house where deceased's body was found and murdered him after this. On the other hand, the State showed by positive evidence that the murder occurred before the parties left the outhouse where the murder and robbery occurred and went to the doctor's office. Concede, however, that the statement of appellant raises the question that Dorsey and Hatcher may have returned to the outhouse about daylight, after they parted with appellant, and then robbed and murdered deceased, the charge of the court in connection with that requested on the same subject by appellant fully protected his rights. The court instructed the jury, in subdivision 37 of the charge: "If you should find that Charley Hatcher and Paul Dorsey, or either of them, unlawfully killed John Johnson, you can not convict the defendant, Jim Moore, of the homicide, unless you further believe from the evidence before you beyond a reasonable doubt, either that such killing was the result of a previously formed conspiracy between said defendant and the party who did the same, or that the defendant was present when the same was done, and knew the unlawful intent of the party who did such killing and aided such party by acts or encouraged him by words or gestures to do such killing, in such manner as to make him a principal thereto, as the term principal is herein explained." Furthermore, appellant requested the following charge, which was given: "In regard to the evidence of the confession of the defendant made to the sheriff, if you believe there was any such confession made, and you find that such confession was free and voluntarily made by the defendant *52 after he had been cautioned that such confession might be used against him, then you will consider the same; but if you believe that the defendant made such confession, but it is not shown to be freely and voluntarily made, or if it is shown by the evidence to have been made upon compulsion or persuasion, or under such undue influence as to extort same, then I charge you that you will reject it from your consideration in making up your verdict in this case. Should you consider such confession or declaration, then I charge you that such confession or declaration, having been introduced in evidence by the State, the whole of such confession or declaration must be taken together and so considered by the jury; and the State is bound by them, unless they are shown to be untrue by the evidence. Such confessions or declarations, if any you believe to have been made by the defendant, are to be taken into consideration, if at all, by the jury, in connection with all other facts and circumstances of the case. The State having put in evidence the statement and confession of the defendant, Jim Moore, concerning the transaction, you can not convict the defendant, unless you be satisfied beyond a reasonable doubt that the defendant's account of the affair, as stated in such confession, is not true." And again, the court gave this charge at the request of appellant: "A conspiracy can not be established by the testimony of an accomplice or accomplices alone, and in this connection I charge you that unless you believe from the evidence outside of the evidence of Paul Dorsey, and also outside of the evidence of Bill Jones, if you find that Bill Jones was also an accomplice, that there was a conspiracy to rob John Johnson, or rob and murder John Johnson, then the evidence is not sufficient to establish a conspiracy, and you can not consider any of the acts or declarations of Paul Dorsey, or any of the acts and declarations of Charley Hatcher, as to such conspiracy against the defendant in this case."
So it occurs to me, if there is anything in the so-called confession of appellant as introduced by the State, every right of appellant was amply safeguarded by the instructions given.
The opinion also declares that the charge on conspiracy as given by the court was erroneous, as being on the weight of evidence, and refers to the case of Hudson v. State,
I have carefully read the evidence taken on the motion for change of venue. While a number of the witnesses say that in their opinion appellant could get a fair trial in Fannin County, yet the testimony discloses that the case, on account of its enormity, became the subject of comment throughout the county; and this was intensified by the former trial of Hatcher, a coconspirator with appellant. Taking the testimony of the witnesses altogether, it occurs to me that the case should have been reversed on this ground.