Hamblin v. State , 41 Tex. Crim. 135 ( 1899 )

Appellant was convicted of murder in the second degree, and her punishment assessed at confinement in the penitentiary for fifty years, and she appeals.

Appellant's first assignment of error is: "That the verdict of the jury is contrary to the law and the evidence (1) because the evidence fails to establish to a reasonable and moral certainty that Sallie Raney, deceased, came to her death by violence; (2) because the evidence fails to establish to a reasonable and moral certainty the defendant's complicity in the commision of the alleged crime; (3) it is equally as probable from the evidence that the deceased came to her death from natural causes or violence accidentally inflicted on herself as by violence at the hands of the defendant." I.W. Matthews, witness for the State, among other things testified: That he went to appellant's house and rang the door bell. Appellant asked, "Who is that?" Witness answered, "It is Matthews." Appellant said, "Open the door and go into the parlor; I will be in in a few minutes. I am not dressed." Witness opened the door, walked in the parlor, the northeast room, took his seat, and in about five minutes defendant came in, and, when she came in, she spoke to witness and shook hands and sat down. Witness talked to her about some business about five minutes and got up to go, when appellant said, "Mr. Matthews, did you know Sallie Raney was dead?" I said, "No, Mrs. Hamblin, I had not so much as heard that she was sick." She said, "Well, she is dead. Do you want to see her?" Witness replied, "Yes, I will go. When did she die?" Appellant said, "She died last night." Appellant walked into the front southeast room, and witness followed her. Appellant walked to a folding couch, on which the girl lay, and pulled from her face a bloody-looking cloth, saying, "She died last night. When I awoke this morning, I called to her, but she did not answer. I then got up, came to her bed, and took hold of her and shook her, and found that she was dead." Witness discovered that deceased's face was considerably bruised and looked to be swollen some. Witness turned to go out, and when he got in the hall saw some blood on the matting and on the wall near the baseboard, and a bucket of bloody-looking water, with some rags in it, sitting in the hall. Witness said to appellant, "Mrs. Hamblin, what does this mean?" And she said, "That is where she [deceased] fell yesterday evening and hurt herself, and I made her wash up the blood before she died. I guess I ought not to have done so, but I did." Witness did not notice whether the blood was dabbed on the wall or spattered. Witness asked appellant if there was anything he could do for her, and she said, "Yes, to go myself and send Dave Campbell to her at once, and asked me to telephone for her brother, D. Shofner, at Georgetown, and that I could notify Sallie's [deceased's] people if I wished." The only time accused appeared to be excited any was when she first asked witness if he knew Sallie Raney was dead. Witness returned to the house subsequently, and at that time noticed some blood on the other side of the hall on the baseboard, and saw two or three small spots of blood in the room adjoining or back of the room where the body was lying, and found several bruises on the person of the girl. Her face was bruised badly, seemed to have been beaten. On the left side of the head the skin was broken. The back of the head was badly beaten and bruised. Her clothing was wet, and there was a frozen cloth over her feet. She did not seem to be dressed as one retiring. She had on a thin, slazy dress of some kind over an undergarment. The weather was very cold, and there was snow on the ground, which had fallen on Thursday night. McT. Bush testified that he was justice of the peace of precinct No. 1, at Salado; that he held an inquest over the body of the deceased, Sallie Raney. When he went into the house appellant was informed that he had come to investigate the death of Sallie Raney, and asked her to be sworn to tell what she knew about the matter. She was sworn and made a statement. "When she got about halfway through, she asked to see Dr. George, privately, which was refused her until she had completed and signed her statement, when I stepped aside with Dr. George and defendant, and she told Dr. George that he knew deceased had been badly ruptured during childbirth." Appellant's statement is as follows: "Miss Raney went to bed Saturday, December 9th, a little before sundown. I went to bed near dark. We were together in the room before she went to bed. Saw her no more until this morning. I sleep in this room. Don't know what time I got up this morning. Called her; she did not answer; felt her, and she was cold. Saw some one and called him to call Dr. Adams, and saw him come here and found it to be Mr. Matthews. Told him to get Mr. Campbell. It was near 10 o'clock in the day. We both sleep in this room. She was well last night except some bruises, so far as I know. Ever since her baby died she would sometimes bump her head. Once when she was cooking I saw some bruises on her head, and asked her how come it, and she said that the lattice did it. I asked her later if it was by accident. She said, `No; but for spite.' That was I don't know how long ago, but since the baby died. I noticed yesterday morning that her head was bruised. She said that she did it in coming out of the loft with feed for horse. She was up all day yesterday, ate her breakfast, and ate dinner near 2 or 3 or 4 o'clock p.m. No one been here in this house, except Mr. Dave Campbell and Mr. Matthews. Campbell not been here in several days. No lady been here since baby died, that I remember of. (She wanted to see Dr. George privately. Not allowed.) I have heard talking at barn, and she would always say she was talking to herself. She seemed to be stiff; is always falling. She said last night that she felt tired and went to bed. Never complained of bruises hurting her. She washed her bruises and the floor with a rag and her apron, and rinsed the clothes in a bucket of water, near 1 o'clock in evening. We had just got up. She had been out to feed the horse and come in. Then I noticed that she had bruises on her, and she said that she did it on the loft floor. I think she had a fit. She has some kind of spells, but as soon as she falls she is up. She has had a few bubbles to come out of her mouth twice while spell is on. Never noticed whether her limbs were stiff or not. Neither spell lasted more than a minute or two. She always asks for her hartshorn, and is in her right mind immediately. I have a pistol and shotgun, both. Mr. Matthews was the first in the house after the discovery of death, so far as I know. The blood in hair is from bruises. The blood on rope she said was from her hands, caused from tying rope on bucket. She got up when she fell in hall. I did not help her up. I told her I would call in neighbors. She said she did not want them to know what she had been doing. She got clothes bloody yesterday morning, and was up all day yesterday afterwards. Some of those bruises are old hurts, hurt over." Witness Bush further stated that he found deceased lying on a folding couch as indicated by the witness Matthews; that there was a bruise on one side of her face and a gash on one side of her head, just above the ear, about an inch long, and another further back towards the back of the head, and a bruise on the ear. The back of the head seemed to be badly bruised, and most of her hair was out on one side. One eye was badly bruised. There was blood on the bed. The clothes had some blood on them and were wet, with the appearance of having been washed. Her arms had the appearance of having been tied with a rope, and there were marks about her neck that looked like impressions made with a rope. "I know where the cistern is. I examined the rope at the cistern, and found it to have been freshly cut. It had blood and hair on it that resembled the deceased's hair. I saw a hatchet in the room of the house at the inquest that had a little blood and some hair on the edge. The hair was short and resembled the deceased's hair. The hatchet seemed to have been washed. When they arrested appellant late in the afternoon, he told her that she would have to go to Belton, and she asked if she could change her clothing, and she was permitted to do so." It was also shown that appellant was living at this house with the deceased, and no one else. All the circumstances show clearly, without stating them in detail, that appellant, and no one else, committed this crime. No tracks were seen going away from the house, and all the circumstances indicate that appellant had cognizance of all that was transpiring in that house with reference to Sallie Raney. Her own statement will not bear a casual inspection, but indicates a fabrication from beginning to end. We can not agree with appellant's contention, but believe that the verdict of the jury is amply supported by the law and the evidence, — pointing irresistibly to the conclusion that appellant, and no one else, committed this offense. The verdict is only tempered with the chivalrous regard the jury had for the sex of appellant.

Appellant's second assignment is "that the court erred in permitting Dr. George, Mrs. George, and Mrs. Hunton to testify, over her objections, to the circumstances of the death of the deceased's baby, as shown by bill of exceptions number 1." An inspection of this bill discloses that the only grounds of objection urged to this testimony is because "their testimony is immaterial and irrelevant." We have repeatedly held that the bill of exceptions must disclose some reason why the testimony is not admissible, and the mere allegation that the testimony "is immaterial and irrelevant" is not sufficient. Wade v. State,37 Tex. Crim. 401; McGrath v. State, 35 Tex. Crim. 422. But granting the bill comes within the rule. It appears from said bill that "the State offered to prove by Dr. George the death of the deceased's baby a short time before the death of the deceased, and also offered to prove the circumstances connected with the death of said baby. To which evidence defendant objected because of its immateriality and irrelevancy. The district attorney stated that he offered said testimony on the ground of motive. * * * And the State also offered to prove by Mrs. J.R. George, wife of Dr. George, that on the morning after Dr. George had gone over to see the baby in the evening, defendant came over after Dr. George, and, not finding him at home, told witness to tell Dr. George to come and see the baby as soon as he came. And defendant said that, while the baby seemed to be better, she [defendant] did not like the looks of the baby's eyes. While defendant and witness were talking, some one came in, and, acting upon information received, witness stepped out of her back door, and heard deceased in front of defendant's house, screaming; that witness went with defendant, and, when they arrived at the house, the baby was dead; that, before they got there, they saw or heard Sallie Raney run out of the house, and exclaim, `My poor baby is dead.' Witness and some other ladies went in the house, took the baby's clothes off, and rubbed it. They found that it had turned a blue or purple color; that one of the ladies opened the baby's mouth, and smelled turpentine." The State also recalled Dr. George, and he testified "that the blue or purple color of the baby's body might have been caused by the air being cut off from the blood, either by choking or by putting something over its head and smothering it. It could have been caused by failure of the heart to act, or any other means that would cut off the air from the blood." Mrs. Hunton also testified that "the baby's body was a blue or purple color; that witness took deceased out on the gallery for the purpose of having a conversation with her; that while they were there on the gallery, during a period of two minutes, Mrs. Hamblin appeared or passed by them twice; that witness could not understand why appellant came about them, but she noticed that while appellant was near by deceased would not talk." Now these circumstances, as detailed, although remote, indicate, as claimed by the district attorney, the probable motive that appellant had in killing deceased. Suppose there was positive proof that appellant had killed deceased's baby; it certainly would not then be seriously contended that that fact could not be established in order to show motive for killing the deceased in order to destroy the witness to her crime. Then, clearly, any circumstance that would go to show that appellant had killed the child would have been admissible. Appellant, on her cross-examination, admits that she knew that she had been accused of killing Sallie Raney's baby, and protested her innocence to the deceased. If the bill had been properly framed, we do not think the admission of the evidence would be error; but, on the contrary, think it was properly admitted. See Brown v. State, 24 Texas Crim. App., 170; Hudson v. State, 28 Texas Crim. App., 323; Leeper v. State, 29 Texas Crim. App., 63; Hall v. State, 31 Tex. Crim. 565; Strang v. State, 32 Tex.Crim. Rep.; Malcek v. State, 33 Tex.Crim. Rep..

Appellant's fourth assignment is "that the court erred in permitting the testimony of Tom Crass to go before the jury, as shown by bill of exceptions number 2." This bill discloses the following: "Tom Crass was passing appellant's house, and heard her make the statement to another lady, unknown to him (to which defendant then and there objected because said statement was not shown to have been made by defendant to deceased); and the witness testified that on Thursday afternoon, before the death of Sallie Raney, he passed defendant's house, and saw two women on the gallery, — one was defendant, but he did not know who the other woman was; that witness passed there every day, attending school, and had seen no other ladies there except defendant and this one; that they were standing close together on the gallery, and the other woman turned and went into the house; that defendant walked around on the outside of the house to where there was a large box, and I heard her say, `Oh, now I have found your hiding place.' Witness could not say that either of the ladies was the deceased. Witness did not know deceased, but the woman he saw with defendant was a small woman, but larger than defendant." The other evidence shows that deceased was a larger woman than the defendant. This bill is in the same condition as the former bill; that is, it does not indicate wherein the testimony is objectionable. We are left to conjecture as to what appellant's objections are. Suffice it to say that we think the testimony is admissible as a circumstance — remote, it is true — going to show the feeling that appellant had towards deceased. As stated above, no one lived at the house with the appellant but the deceased; and this witness testified that they were something near the same size, but that the other woman was larger than defendant. When the witness heard the declaration that appellant made, that she had found deceased's hiding place, it indicated that deceased (if it was her) had been doing something that appellant did not like or approve of. We think that testimony was admissible. Williams v. State, 15 Texas Crim. App., 104; Preston v. State, 8 Texas Crim. App., 33; Burt v. State, 38 Tex. Crim. 397; Easterwood v. State, 34 Tex.Crim. Rep..

Appellant's fifth assignment complains of the refusal of the court to instruct the jury, "To authorize a conviction in this cause, it should appear from the evidence beyond a reasonable doubt not only that the crime as charged has been committed, but there should also be proof, established beyond a reasonable doubt, pertinently identifying defendant with the crime beyond a mere probability or strong suspicion." We do not think this is the law; and the court's charge covered the law of circumstantial evidence in all respects.

Appellant's sixth assignment is "that the court erred in failing to submit in his charge all the issues raised by the testimony, and in failing to limit the jury in their consideration and application of the evidence, showing and tending to show the commission of other crimes by defendant, which testimony was strongly calculated to, and probably did, injure defendant's rights before the jury." We do not think there is any merit in this assignment; nor do we think it was the province of the court to limit the effect of the testimony of the witnesses going to show that appellant had murdered the child of the deceased. See Leeper v. State and other authorities, cited supra. This also disposes of appellant's seventh assignment of error.

The eighth assignment of error complains of the failure of the court to limit and restrict defendant's testimony, brought out by the State on cross-examination, concerning the death of her husband. We are at a loss to know how this could be done. Some question was asked on cross-examination about her husband, but nothing that would tend to criminate appellant; nor was anything asked that was not in the legitimate cross-examination of appellant. When she took the stand, she thereby became subject to the same rules of cross-examination as any other witness. Quintana v. State, 29 Texas Crim. App., 401.

The verdict of the jury is amply supported by the evidence; and, finding no error in the record, the judgment is in all things affirmed.

Affirmed.