Minor v. State , 108 Tex. Crim. 1 ( 1927 )

The deceased, Jim Sickles, lost his life on the 21st day of January, 1927. According to the testimony of William Franks, the death of the deceased was brought about by the use of chloroform by the appellant. Assuming that the jury resolved the conflicting evidence in favor of the state and that the corroborating facts were sufficient to sustain the testimony of the accomplice witnesses, the verdict of the jury to the effect that the appellant murdered Jim Sickles is supported by the evidence. Two of the witnesses, namely, William Franks and Ida Sickles, were accomplices. The jury was so instructed. Whether Allen was an accomplice witness was a question of fact which was submitted to the jury in the charge of the court, and the verdict implies that he was not an accomplice. The sufficiency of the corroborative testimony is challenged. The deceased was a share-farmer upon the premises of the appellant and also a day laborer. The distance between the residence of the two was about a quarter of a mile. Sickles had resided upon the farm of the appellant for about a year. At the time of his death there were seven insurance policies upon his life, in each of which Ida Sickles was named as beneficiary. In the issuance of these, the appellant was instrumental and it was he who paid the premiums thereon. The testimony of Mrs. Ida Sickles leads directly to the conclusion that she and the appellant were on criminally intimate relations before and after the death of her husband; that she and appellant formed a conspiracy to dispose of Sickles and live together, also to obtain money through his death by means of insurance upon his life, some of which was to be augmented in case his death was the result of accident; that in pursuance of the design mentioned she and the appellant procured the issuance of insurance policies on the life of Sickles by means of forged applications and fraudulent collusion with an insurance solicitor; that the applications were forged by the wife of deceased and the policies issued without his knowledge, appellant advising the transaction and being present when the act was done; that on the day of his death, deceased left his home going in the direction of the home of the appellant and was not seen alive thereafter by the witness; that she was informed by appellant that the deceased was injured by a horse and that she did not go to the deceased but accompanied by appellant to town to telephone for a doctor; that upon the appellant's suggestion the insurance policies mentioned were hidden in the mattress of the bed of the witness; that after the death of her husband she, in co-operation with appellant and William Franks, made proofs of death of deceased on forms furnished by the insurance companies. William Franks was a relative of Minor (the appellant) by marriage and was an employee of Minor. According to the testimony of Franks, on the 21st of January, he and the deceased left Minor's house under the directions from Minor to hunt stock until dark and ride home after night, and as they came in to nail up the syrup millhouse, which was situated on Minor's premises about three miles from his house. At about dark he and Sickles went to the syrup mill and there found Minor traveling in a wagon which contained some turnips. According to the witness, he and Sickles went in the house after some hay, at Minor's request, and Minor followed them. Sickles reached for a bale of hay, and as he had it in his hands, "Minor grabbed him over the face * * * and had a handkerchief in his hand and threw Mr. Sickles down on his back and fell on top of him and just held him there." The witness smelled some chloroform. "When Minor threw Sickles down on his back, Sickles did not do anything. He made no noise except to groan. Sickles was held upon the floor by Minor for something more than ten minutes." Minor told the witness to assist in getting Sickles out of the house. The two picked Sickles up and carried him to the front of the house and laid him down. Minor tied one end of a rope to Sickles' foot and the other end to his saddle, which was on a wild horse. Minor tied a rope to Sickles' foot while Franks held the horse and then tied it to the horn of the saddle and told Franks to turn the horse loose. The horse dragged Sickles across the meadow for about a hundred yards, when the girth broke. Minor went out and took the rope off and put Sickles' foot in the stirrup of the saddle and told Franks never to breathe that; that if he did he would kill him. Franks said there were no bottles or boxes near the place that he knew of save that on the floor of the barn he picked up a box marked chloroform. Minor told him to burn it, but not having a match, he threw it in some weeds and looked for it later but failed to find it. Franks did not remain long after Minor had left but followed him to his house. Upon reaching the house Franks, according to directions previously received from Minor and in the presence of an inmate of Minor's house, told Minor to get a doctor as Sickles was badly hurt.

The verdict implies that the jury found that Allen was not an accomplice witness. The statement of facts, including Allen's testimony, reveals as coming from witnesses, who were not accomplices, in substance the following:

That appellant frequented the home of Sickles both before and after his death; that appellant had declared his intention to separate from his wife and live with Mrs. Sickles, and that if the person to whom this intent was conveyed disclosed it he would be killed by the appellant; that he was instrumental in getting Sickles to insure his life in favor of his wife and paid the premiums on the policies; that he advised Mrs. Sickles to forge her husband's name on the applications for other policies of insurance on the life of Sickles on which Mrs. Sickles was the beneficiary, appellant paying the premiums; that after the policies were issued they were hidden by Mrs. Sickles; that appellant offered Allen part of the insurance money to induce Allen to aid in the collection of the insurance; that he and William Franks made oaths to the proof of death of Sickles, stating that he was killed by dragging by a horse; that appellant, about the time of the homicide, was seen by two witnesses near the place where the deceased was killed, appellant being alone in a wagon at the time; that he proposed to refute the testimony of this witness by false testimony to the effect that at the time he was at the place mentioned he was not alone but was accompanied by another person; that the evidence of the doctors, as well as others who saw the deceased after his death, excludes the truth of the theory that the deceased was killed by dragging, which was the cause of death reported by the appellant to Doctor Pickett, to Mrs. Sickles, and to the insurance company in the proofs of death; that he was seen before the homicide going in a wagon alone toward the place where the deceased was killed; that no other than the appellant was shown to have had any motive to kill the deceased, while appellant coveted the wife of the deceased and desired to profit by his death; that he and the wife of the deceased, who was a co-conspirator to take the life of the deceased, were, after his death, in possession of the fruits of the crime, namely, the policies of insurance, and co-operated with each other and with the accomplice Franks in their efforts to realize the insurance money.

In the indictment it was charged in substance that the appellant caused the death of Jim Sickles by causing him to inhale and swallow chloroform by holding and closing his mouth and nose and strangling and smothering Sickles so that he could not breathe, and by these means the instantaneous death of Sickles was effected. In connection with the submission of this issue the court instructed the jury in accord with the averments in substance as stated above.

Several doctors testified that practically instantaneous death could result from placing a cloth saturated with chloroform over the mouth and nose of one so that he would not breathe but would take the chloroform into his lungs; that death might be produced in one or two minutes; that if death was instantaneous or practically so, it was not likely that the drug would leave blisters upon the skin; that if the chloroform was administered merely by inhalation and not by drawing the fluid into the lungs, that death would not result so quickly and that the drug would probably leave some blisters about the face. The volume of the testimony of the doctors precludes its quotation in detail in this opinion. One of the doctors examined the deceased at the place where he was killed some three or four hours after his death. The others examined the body after it was exhumed some three weeks after his death. All of them testified to the absence of any external evidence informatory of the cause of death. The lay witnesses who examined the body of the deceased while it was at the place where the homicide occurred gave testimony to the effect that the body exhibited no signs of bruises or broken bones or indications that it had been dragged. The same is true with reference to Doctor Pickett, who was called as a witness by the appellant and who, we understand, to have been the only doctor who examined the deceased before he was buried. Doctor Pickett testified that he had been informed that the death of the deceased was the result of having been dragged by a horse, and with that in mind he made an examination, but failed to find anything upon the body which would support that theory. He also said he found no evidence of strangulation or smothering, and that the eyes appeared normal. Some of the doctors testified that if there was strangulation or choking, it would likely be indicated soon after death by protruding eyes and dilated pupils. Others testified that if chloroform was administered in sufficient quantity and in a manner that would produce death in one or two minutes it would not, in their opinions, leave any signs which would enable a physician examining the body two or three hours after death to determine whether the death was caused by the administration of chloroform. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that "there be other evidence tending to connect the defendant with the offense committed." Art. 718, C. C. P., 1925. Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supply the test. If, by this rule, it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied. Underhill's Crim. Ev., 3rd Ed., Secs. 129 and 130; Meredith v. State, 85 Tex.Crim. Rep.; Wright v. State,47 Tex. Crim. 433; Huggins v. State, 85 Tex.Crim. Rep.; Halbadier v. State, 85 Tex.Crim. Rep.; Middleton v. State, 86 Tex.Crim. Rep.; Walker v. State, 252 S.W. 543; Willman v. State, 99 Tex.Crim. Rep.. Owing to the length of the testimony adduced upon the trial, it has been necessary to summarize rather than to quote it. We have not undertaken to state all that bears upon the subject of corroboration, and space precludes a discussion at length. In the cases last cited above, and also in Willman v. State, 92 Tex.Crim. Rep., and Walker v. State, 92 Tex.Crim. Rep., are to be found facts quite analogous to those in the present record. In those cases the remains of Jack McCurdy were found upon a railroad track mangled by a train passing over the body. Henry, who was an accomplice, testified that McCurdy was killed at the home of Willman by a blow struck upon the head, and that Willman, Howard and Walker were the authors of the homicide and that they, together with Henry, had deposited the remains of the deceased upon the railroad track. The task of the state was to corroborate the witness Henry. As stated above, the remarks of the court in the various opinions mentioned are illustrative of its views upon the present record.

After the most thorough examination of the record of which we are capable, and consideration of the analysis of the facts contained in the able and carefully prepared motion for rehearing, the opinion has been formed and is here expressed that the court would not be justified by the record in declaring that the corroboration of the accomplice witness was not such as, in a legal sense, tended to connect the appellant with the murder of the deceased.

From bill of exception No. 3 it is made to appear that the District Judge, upon organizing the January term of the District Court, found that his predecessor had failed at the previous term to appoint jury commissioners to select grand and petit juries. A few days thereafter the regular term was adjourned and a special term of court called. Upon organizing the special term the court appointed jury commissioners who selected the grand jury which found the indictment against the appellant. Appellant challenges the legality of the calling of the special term and power of the court to organize the grand and petit juries. We have had occasion to review like points raised in the case of Hunter v. State, No. 11023, not yet reported. Therein we called attention to the fact that the omission from the Code of Criminal Procedure of 1925 of the provisions relating to the calling of a special term of court was not destructive of the right and power granted to the District Judge by the Constitution and laws of the state to call a special term of court for the trial of criminal cases. Such power is found in the Constitution of the state, Art. 5, Sec. 7, and in Art. 1920 of the Revised Civil Statutes of 1925. In the statute it is expressly declared that at a special term called by the District Judge he may appoint jury commissioners, who may select and draw grand and petit juries in accord with the law. We do not deem the organization of a special term of court a matter of criminal procedure. It is a part of the organic law of the state. A phase of the same matter was discussed in Compere v. State, 295 S.W. 614; see also Bennett v. State, 95 Tex.Crim. Rep.; Ex Parte Holland, 91 Tex. Crim. 339.

Bills of exceptions Nos. 6, 7 and 16 complain of the refusal of requested special charges advising the jury that an acquittal must result if the death of the deceased was due to any cause other than that averred in the indictment. In view of subdivision 5 of the main charge in which the court (submitting the converse of subdivision 4 of the charge) instructed the jury that unless they believed that instant death of the deceased resulted from chloroform administered by the appellant an acquittal should result, it was not necessary to give the requested charges.

We have received no error in the refusal of the court to give special charge No. 11 on the subject of alibi.

The court affirmatively instructed the jury that Ida Sickles and William Franks were accomplice witnesses, and that their unsupported testimony would not warrant a conviction. Touching the witness Allen, the court, in his charge, called upon the jury to determine whether Allen was an accomplice witness. Allen's connection with the transaction seems to have been limited to engaging in unwarranted methods of issuing insurance policies. The jury, we think, was justified in concluding that he was not a particeps criminis to the murder of the deceased. The failure of the court to instruct the jury that he was an accomplice witness as a matter of law is deemed not error.

The refusal of the request to instruct the jury that if Franks implicated the appellant in the homicide in order to avoid being killed, to acquit, we think, was not error. The coercion and duress which would raise such an issue is not found in the record. See Willman v. State, 92 Tex. Crim. 77; also 99 Tex.Crim. Rep.. Moreover, the requested charge is deemed to be upon the weight of the evidence.

The action of the court of which complaint is made in bills of exceptions Nos. 28 and 29 in permitting a hypothetical question to one of the doctors, in our judgment, reveals no error. The bills, as qualified, show that the question was based upon testimony which went before the jury and was permitted upon the assurance that the evidence upon which it was predicated would go before the jury.

The motion for rehearing is overruled.

Overruled.

ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.