Stevens v. State , 42 Tex. Crim. 154 ( 1900 )

The grand jury of Henderson County returned an indictment against Joe Wilkerson, W. Wilkerson, W.B. Brooks, Sam Hall, W.A. Johns, Bob Stevens (appellant), and John Gaddis, charging that they "did on or about the 23d of May, 1899, in said county, unlawfully and with malice aforethought, kill and murder Jim Humphries, by then and there hanging him with a rope to a tree." At the same term of the court each of the above parties was separately indicted in two different indictments, for the murder of John and George Humphries. John and Arthur Greenhaw and Polk Weeks were separately indicted in three several bills, each charged with the murder of John, Jim, and George Humphries. At the September term of the District Court of Henderson County the court, of its own motion, changed the venue of the defendants, except John and Arthur Greenhaw and Polk Weeks, in all the cases, to the District Court of Anderson County. John and Arthur Greenhaw and Polk Weeks, under the contract with the State, through the district attorney, turned State's evidence; and, in changing the venue of the various murder indictments above mentioned, the court merely transferred an indictment against each of said last named parties to Anderson County, wherein they were charged respectively with the murder of George Humphries, leaving the indictments for the murder of John and Jim Humphries, respectively, still pending in the District Court of Henderson County. Appellant was tried in Anderson County, after the venue was changed, was found guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Appellant's first assignment of error complains that the court erred in overruling the motion for severance between defendant and his codefendants, supported by their affidavits, to have the two Greenhaws and Weeks first put on trial, and in overruling his individual motion and affidavit to have the said Greenhaws and Weeks first put on trial. Article 707, Code of Criminal Procedure, provides: "Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted, and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired to secure his or their conviction, such party or parties for whose evidence said affidavit is made shall first be tried; and in the event that two or more defendants make such affidavit, and can not agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried; provided, that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party." Each of the several motions of appellant complies in all respects with the conditions and provisions of this article. Upon the filing of the motion (which is not necessary to be quoted) the said two Greenhaws and Weeks filed an affidavit, and denied the facts stated in the affidavits of the said joint defendants, to the effect (1) that the testimony of them, or either of them, would be at all material to the other defendants, or either of them; (2) that they, and each of them, were members of the mob that murdered Jim, John, and George Humphries, and that each of the parties to said motion was also a member of said mob, and assisted in murdering the said Humphries; (3) that each of them had heretofore testified to the effect that said parties filing said motion, together with these defendants, murdered the said three Humphries, by hanging them with ropes, about the time charged in the indictment; (4) that affiants had a contract with the State, through her proper officers, if they would truthfully testify, stating the facts concerning said murder, whenever called upon, that they shall be discharged after all of said defendants shall have been tried, or their cases otherwise finally disposed of; that said contract was made in good faith; that they have decided to keep the same faithfully, and testify in each and every trial against all other persons indicted as principals or accomplices to said murder, and ask that the other defendants be put on trial first. In addition to the answer of the three State's witnesses, the district attorney also filed his answer and protest to the motion of said joint defendants, and, among other things, states: "(1) That said case called for trial is upon indictment charging the defendants in said motion with the murder of Jim Humphries. That there is no case pending in the District Court of Anderson County against the two Greenhaws and Weeks, charging said murder. (2) That the facts stated in said motion to the effect that the two Greenhaws and Weeks would be material witnesses for defendant, if they should first be tried and acquitted, are not true, and defendants knew they were not true when they subscribed and swore to said affidavit. (3) The State further says that defendants in said motion stand charged in three several indictments now pending in this court for the murder of Jim, John, and George Humphries, respectively, and that it is not true, as stated in said motion, that said murders constitute one and the same offense, in law, but, on the other hand, they are three separate murders. (4) That the State has a contract, as stated in the affidavits of the two Greenhaws and Weeks, under the terms and conditions of which the parties agreed to turn State's evidence and testify, and under the conditions of which they are to be subsequently released on the final discharge of the other defendants." There is nothing in the answer of the two Greenhaws and Weeks and the district attorney that is a legal defense to the application for severance made by appellants, except the fourth subdivision, alleging a contract with the State, through the proper officers, under the terms and conditions of which the Greenhaws and Weeks are to be released from any further prosecution provided they shall truthfuly testify concerning all the facts pertaining to said murders. They further state that up to the time of the finding of the affidavits they had complied with their part of the contract, and stand ready to testify; that they had theretofore testified in the examining trials, accusing in each instance all of the defendants of guilty participation in the murder of the three Humphries. This, we take it, is a complete answer to the application of the other defendants and appellant, asking for a severance. The proposition, stripped of all verbiage, is this: A. and B. jointly kill C.A. agrees with the district attorney to testify truthfully against B. as to the homicide, and is to be released from prosecution if he will tell the truth, the whole truth, and nothing but the truth. We held in Greenhaw's case, 41 Texas Criminal Reports, 278, that this would be a continuous contract between the district attorney, representing the State, on one side, and the party turning State's evidence on the other; and, under the terms and conditions of said contract Greenhaw is entitled to perfect immunity as long as he complies, or stands ready to comply, with the spirit and letter of the contract. This being true, B., by filing an affidavit under the terms and conditions of article 707, Code of Criminal Procedure, can not force the trial of A. first, because A. is free from any prosecution, under the contract to turn State's evidence. To hold otherwise would be to say that B., by filing an affidavit under article 707, thereby could force an abrogation of the contract on the part of the State, and A., who had previously turned State's evidence. We hold, therefore, that when appellant moved the court, under article 707, for a severance and asked that the two Greenhaws and Weeks be first tried, this should not be done, although they strictly complied with said article, in view of the answers set up by them and the district attorney, wherein a contract is shown between the district attorney and said two Greenhaws and Weeks whereby they agree to turn State's evidence and receive immunity from prosecution. It is recognized practice in this State that the district attorney may, with consent of court, permit one or more parties accused of crime to turn State's evidence and use them as witnesses against his codefendants. See arts. 37, 630, Code Crim. Proc.; Nicks v. State, 40 Tex.Crim. Rep.; Greenhaw's case, supra. Therefore, article 707, authorizing appellant to have a severance, does not abrogate these last cited articles, nor authorize one defendant to have a codefendant tried first, when such codefendant has entered into a contract to turn State's evidence. These statutes must be construed together, and when so considered no other conclusion can be reached than that indicated above. We do not think that the court erred in refusing to grant appellant the right of severance. This being true, it matters not whether the indictments against the State's evidence witnesses remained in the District Court of Henderson County, or the venue thereof was changed to Anderson County.

Appellant's second assignment of error is that the court erred in permitting threats, acts, and declarations of one joint defendant to be introduced as evidence against another defendant before a conspiracy had been established by the testimony, and the testimony failed finally to show the conspiracy. It appears from the bill that the court permitted several witnesses to testify to the acts, threats, and declarations of Joe Wilkerson, one of the coconspirators and codefendants with appellant, made about a year prior to the consummation of the conspiracy. Appellant insists that the proof does not show that appellant was present or knew of such threats, acts, and declarations, and not being present, he was not bound thereby. The State also proved by Jim Sullivan that in February, 1898 (the killing occurred in May, 1899), Joe Wilkerson (appellant's codefendant) stated that he was prosecuting the Humphries for stealing his hogs, and that "he was going to make the sons of bitches look up a limb." The State proved by J.A. Bell that in September, 1898, he had a conversation with said Wilkerson, in which Wilkerson stated that the Humphries ought to be put out of the country; that they ought to be hanged; that he was going to see that they (meaning deceased) were hanged. The State also proved a similar statement by Dave Claymans, made by said Wilkerson about June 1, 1898. In addition to the objection that appellant was not present, he objected to all of said declarations on the further grounds that said acts, threats, and declarations, if binding at all, could only be binding against Joe Wilkerson; and, besides, they were not made in furtherance of a common design agreed upon with anyone, and certainly not with the defendant Stevens. In Harris v. State, 31 Texas Criminal Reports, 415, in passing upon a question of this character, we said: "The court charged substantially that, where a conspiracy was entered into between two or more, the acts and declarations of each in regard to the common purpose are the acts and declarations of all; and, when one enters into a conspiracy already formed, every act done by the others before his entry or afterwards, in pursuance of the common design, and until its consummation, is the act of the one so entering. If the jury believes beyond a reasonable doubt that Harris and others formed a common purpose to kill deceased, and defendant entered into the conspiracy at any time before the death of Shields, the acts and declarations of the coconspirators made and done in pursuance of the common design after said agreement was entered into by Harris and others, and before the killing of Shields, were admissible against defendant. If defendant did not enter into such conspiracy, they should disregard such testimony in passing on defendant's guilt." It will be observed that this charge was approved, and we think it presents the law applicable to this character of testimony. See also Smith v. State, 21 Texas Crim. App., 107; Casner v. State, ante, p. 118. The trial court charged the jury as to this matter as follows: "In this trial testimony of witnesses has been admitted as to the acts and declarations of persons charged in connection with defendant with the commission of the alleged offense. If you believe such testimony to be true, yet you are not to consider it, except for the purpose to determine the character of the offense of the persons making such declarations or doing such acts, if any, and not in any case unless you believe from the other evidence, beyond a reasonable doubt, that defendant was associated in the commission of said offense, if any, with such persons whose acts and declarations were testified to, and that defendant knew of and adopted the designs, if any, indicated by such declarations, before the commission of the offense, if any." This was a very proper and apt limitation to place upon this character of testimony. If two or more parties form a conspiracy to do a certain act, and a third party enters into such conspiracy after the formation of the same, the acts and declarations of the conconspirators made before such party comes into the conspiracy are clearly admissible against the third party, where he adopts the conspiracy, common design, and purpose of all. If he does not so adopt them, then they are not admissible against him, because they do not serve to illustrate or make manifest the common purpose, design, and intent that actuated appellant at the time of the commission of the offense. The learned trial judge very properly limited this character of evidence to the purpose for which it was legitimately admissible, and warned the jury not to consider it for any other purpose. See Kennedy v. State, 19 Texas Crim. App., 618; Luttrell v. State, 31 Tex.Crim. Rep.; Blain v. State, 33 Tex.Crim. Rep.; Cline v. State,33 Tex. Crim. 482; Armstrong v. State, Id., 417; Cline v. State, 34 Tex.Crim. Rep.; Isaacs v. State, 36 Tex. Crim. 505. We think the testimony established the fact that appellant was a coconspirator in the triple murder of the Humphries, and being such, whether he entered at the beginning of the conspiracy or subsequently, the acts and declarations of Joe Wilkerson would be admissible, as illustrating the common design, purpose, and intent with which they all acted, and would be whether the acts and delarations of Joe Wilkerson were made before or after the formation of the conspiracy.

Appellant complains that the court erred in refusing to permit the introduction of a letter written by J.T. Greenhaw to his wife, as follows:

"June 21, 99, Well Hattie

I want you to come over here tomorrow 22 i am at Corsicana jail and you can come and stay with me some now you can get in with me now and stay awhile and talk any time you want to i want to see you bad come at once but done you say anything about it dutch is here with me he will hand it to you he has stayed with me like a brother we are allrite Hattie don't be uneasy dont say anything

"J.T. Greenhaw

"dont say anything about this."

The objection to the introduction of this letter on the part of appellant seems to have been to show the extent of relationship existing between witness Greenhaw and one Dutch Gardner; that it was the theory of appellant that Dutch Gardner and Greenhaw had formed a plot and plan to exculpate Gardner from connection with the crime; and that to inculpate himself and turn State's evidence was a part of the plot and plan, inasmuch as witness' connection with the same had become known. We do not think said testimony is admissible for any purpose, and the court did not err in so ruling. Nor is said testimony admissible as going to show that probably Dutch Gardner was one of the coconspirators in the killing, or that he was one of the principal parties engaged in the killing.

Appellant's third assignment of error is that the court erred in his charge in defining "malice." The charge given by the court is as follows: "Malice aforethought is a condition of mind in which one man does an intentional injury to another in the willful disregard of the legal rights of the other, and it is to be inferred from acts committed or words spoken. It exists when one does a cruel act voluntarily and without excuse, justification, or extenuation, and does not necessarily include hatred towards the person injured. * * * Express malice exists when a murder is committed with sedate, deliberate mind, and in pursuance of a previously formed design to kill the person killed." The usual definition (and we specially commend the same, because it has been frequently approved by this court) is as follows: "Malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." We think the definition given in the court's charge substantially agrees with the definition just quoted. But concede that the charge of the court on malice, as contended by appellant, is erroneous; yet we think the same is harmless, in view of the record before us. The only issuable facts in the case were these: The nonpresence of appellant, or his guilty participation in a cold-blooded and deliberate murder. This being the case, if the charge should be erroneous in the definition of "malice," it could not injure the rights of appellant, because no other issue for the State is submitted, except murder in the first degree, as disclosed by the evidence before us.

Appellant, in his lengthy brief, and also in his bills of exception, complains of the failure of the court to give divers and sundry charges requested by him. We have examined all of said charges, and have thoroughly read and examined the charge of the court, and do not think the court erred in refusing to give any of said charges, nor in refusing to charge upon any phase of murder in the second degree or manslaughter. The evidence raises but two issues, to wit, murder in the first degree and alibi. If appellant was present at the scene of the homicide, aiding and abetting in the commission of the murder charged in the indictment, we are at a loss to see how, under any phase of the evidence in this case, he could have been guilty of any less grade of murder than the first degree. It may be conceded, as strenuously insisted by appellant, that the original design of the conspirators was not to murder the Humphries; yet, if the testimony of the State's witnesses (which we think is reasonably well corroborated) is to be believed, they subsequently formed the diabolical purpose of hanging the three Humphries to the same tree, and did so. Then why, how, or in what way the previous intent and purpose of the conspirators could be used as a predicate for a charge on murder in the second degree, we are at a loss to understand. If A. and B. agree to take C. out for the purpose of making him disclose where D. is, while this is unlawful, it is not murder, as contended by appellant. But suppose, after getting C. out, they agree to hang him, and proceed to accomplish that purpose by providing themselves with ropes, and do hang C.; does the previous purpose in taking C. out have anything to do in lessening the guilt of the act they subsequently perform? Certainly not. Hence the court did not err in refusing to charge on any phase of murder in the second degree or manslaughter.

Appellant complains that the court did not charge on the law of alibi. It is true, as contended by appellant, there is not as full a charge on this subject in the court's charge as might have been framed. The trial court does not state, in the usual form, that appellant "relies in this case upon the defense of alibi, which means that he was not present at that particular time and place, and, therefore, if you find he was not present, find him not guilty," etc. But the trial court has seen fit to embrace the same idea in the following language, to wit: "The defendant could not be guilty as charged unless he was present at the commission of the offense, if any; and if you have a reasonable doubt of the defendant being present at the killing of said Jim Humphries, if any, then you will acquit him." This is a distinct, clear, and substantive charge upon the law of alibi, disconnected from and independent of any other part of the charge, and, we think, clearly presents the law of alibi to the jury. We therefore do not agree with appellant that his defense was not charged by the court.

In bill number 2 appellant complains that the jury were permitted to listen to a sermon, and that the minister during the discourse made allusion to the trial of appellant, and the crime with which he stood charged. Various affidavits pro and con are filed in reference to this matter, and, from an inspection of the same, we can not say that there is any error such as was calculated to injure the rights of appellant. By affidavit the minister denies in toto the contention of appellant that allusion was made to the crime with which appellant is charged, and other affidavits support his. We would, however, add that in the course of trials of this magnitude it is much better that jurors should be kept together, and not permitted to attend services where statements are likely to be made prejudicial to the rights of defendant.

Appellant also complains that the court erred in changing the venue from Henderson to Anderson County, and also erred in refusing to recommit said case to Henderson County. In this we do not think there was error. The court having transferred the cause upon his own motion, unless there is an obvious and clear abuse of his discretion, under the statute, we will not review his action in changing the venue. For a full discussion of this question, see Nite v. State, 41 Texas Criminal Reports, 340.

The only remaining question for our consideration is the sufficiency of the corroboration. The testimony of the two accomplices makes a clear case against appellant. Their statement is that appellant, together with the accomplices and several others indicated above, formed a conspiracy to take the three Humphries out and make them divulge the whereabouts of one Patterson. Subsequently, however, they took the Humphries to a tree near their homes, fastened ropes around their necks, and hanged them until dead, in the cruelest and rudest manner. The testimony of said accomplices is corroborated by evidence clearly tending to connect appellant with the commission of the offense, and, without reviewing the corroboration in detail, as the record before us is very voluminous, we must say there is sufficient corroboration to comply with the law. Such being the case, and no error appearing in the record requiring a reversal, the judgment is in all things affirmed.

Affirmed.