Jones v. State (141 S.W. 953, 1911)

PRENDERGAST, J.

On October 5, 1910, the appellant was indicted by the grand jury of Lamar county for the murder on July 6, 1910, of the infant child, without a name, of Willie Wilbur. He was convicted of murder in the second degree, and given the lowest penalty — five years.

The indictment is in two counts, though they are not given a separate number, nor are they in. separate paragraphs. After the formal part, the indictment alleges that W. A. Jones, alias G. D. Wilkins, on or about July 6, 1910, in Lamar county, did then and there unlawfully, and with his express malice aforethought, kill and murder an infant child of Willie Wilbur, said child being, without a name, by him, th'e said Jones, alias Wilkins, breaking the neck and disjointing and dislocating the neck of the said infant by then and there twisting the head and neck and pulling the head and neck and jerking the head and neck, and dislocating and breaking the neck and disjointing and dislocating the neck of said infant with his, the said Jones’, alias Wilkins’, hands and fingers from which said several acts (enumerated above and reiterated) the said infant on said date did die, and on said date the said Jones, alias Wilkins, did then and there unlawfully and with his express malice aforethought kill and murder the said infant child by him, the said Jones, alias Wilkins, pressing and mashing the head and bowels of the said infant with his hands and fingers, and by dropping and placing the infant in a night glass and slop jar_ from which said acts (enumerated and again repeated), the said infant did die, a better description of the means and instruments by which and with which the said Jones, alias Wilkins, did then and there kill and murder the said infant the grand jurors cannot give. The above, in substance and effect, are the allegations, but not a copy of the indictment.

It takes some 68 pages of typewriting to give the statement of facts. We do not undertake to give in detail this testimony, but from the whole of it, gathered by taking and combining the testimony of the several witnesses, where not otherwise stated, we will give' such statement as will illustrate the points raised and discussed:

The witness, a woman, Willie Wilbur, about 22 years of age, had been living in Oklahoma, and, it appears, "on the place of Bill (or W. W.) Swink for about a year pri- or to the commission of the alleged offense. That said Swink during that time had been having sexual intercourse with her, and the testimony justified the jury to believe that she became with child by him some time in November, 1909. That about Sunday July 3, 1910, she began to have some labor pains, and she and said Swink thereupon went from where they were living in Oklahoma to the city of Paris, in Lamar county, and put up at a restaurant or boarding house known as the “Hignite House.” Swink registered her name as Annie Ernest and his as J. G. Gentry, both from Texarkana, Tex. She was assigned to a room, and Swink to one adjoining, and soon after her arrival there went to bed, and practically remained in bed until after the birth and death of her child on Wednesday night July 6, 1910. She continued to have labor pains from, time to time until after- the arrival of the appellant on Tuesday afternoon July 5th. Appellant did not register at the Hignite House when he first arrived there, although he was assigned to and occupied a room therein, but he did register on the night of July 6th, when required to do so by the proprietor of the house, first starting to write his name W. A. Jones, but, before completing the word Jones, erased that, and instead wrote G. D. Wilkins, from Texarkana, Tex. Swink and Hignite, the proprietor of the house, were present when he did this. The appellant came to Paris to attend Willie Wilbur in confinement, knowing at the time that she was to be confined. He came at the instance of said Swink, and attended her at his instance. He made an examination of her Tuesday evening soon after his arrival there, and claims that he then discovered that she was in labor, and, while he thought it was premature, the examination developed that the birth could not be properly prevented, and he thereupon administered to her from time to time drugs for the purpose of bringing on and inducing the delivery of the child. The labor pains continued from time to time after he reached there, made his examination, and began to administer the drugs, with more or less increased severity until the child was born about 10 o’clock Wednesday night. While the women servants at the hotel waited on her and carried her meals to-ller Monday, Tuesday, and Wednesday, visiting the room some three or four times or oftener each of these days, no one was present at the birth of the child, and for some hours prior thereto, except said Swink and appellant. Soon, if not immediately, after the birth of the child, it began to cry, and cried somewhat vigorously and loudly. The two women working in the house and who had been waiting on the confined woman at once, after hearing the cries of the child downstairs where they were at work, went up to the room. The door was closed. Swink was standing with his back against it, and it was not opened for some time, and not until repeated and loud raps were made thereon. Finally, wben they were admitted, they saw and offered to take the child, wash, and dress it, but they were not permitted,by appellant or Swink to do so. At the deiiv-ery of the child, the appellant took it in his hands, one about its hips and the other about its head, had a night or slop jar in which there was some water removed from under a table, and dropped the child into this jar. He did not then tie or cut the navel cord. The child was crying at this time. He then attempted to remove the afterbirth. After letting the child remain in the night or slop jar for some time, he removed it therefrom, and placed it on a table. After the two servant women were admitted into the room,, they discovered that the appellant had neither tied nor cut the navel cord of the child, and called his attention thereto. He thereupon said to them that it was no use, “it will die anyway.” At this time the navel was bleeding. One of these women replied to him that he had better tie it. If he did not, she would call an officer, and have him arrested in five minutes. She then picked up an ordinary twine string that she found on the floor, handed it to him, and he then tied the navel cord. When the two servant women . Wilkins, anywhere in the examination of the witnesses, the trial of the cause, or the charge of the court, and it was too late to raise and present this question on motion for new trial.

Besides this, the appellant is in no wise shown to have been injured under the circumstances stated.

The sixteenth bill complains that on appellant’s motion for a new trial he offered in evidence the special venire list and list of jurors impaneled to try said cause, showing that the name of W. O. Brackeen was drawn upon said venire, and that W. 0. Brackeen was served with the venire writ and summoned to serve upon said case as a juror, and that no person by that name was so drawn or summoned. The verdict of the jury was also introduced which was signed, “W. 0. Brecheen, Foreman.” It also appeared upon the hearing of said motion for new trial tliat the person so acting as foreman answered the name of W. 0. Braekeen, and was duly qualified, selected, and sworn as a juror in said cause; that the court overruled the motion for new trial, and the appellant excepted. This bill was allowed by the court, with this explanation: “That W. 0. Braekeen was drawn on the venire and served upon the jury, and was the foreman of the jury, and signed the verdict, and signed it W. 0. Braekeen, and he testified by affidavit that he signed the verdict in this case, and the said W. 0. Braekeen handed the verdict to the court when the jury came back after considering the case. The controversy in this bill arises from the fact that Mr. Braekeen signs his name so that it looks somewhat like ‘Breeheen.’ Counsel for defendant had known Mr. Braekeen for years, and knew that he was on the jury, and accepted him as one of the jurors to try the ease, and were present when the verdict was brought in, and saw him hand the verdict to the court, and heard the verdict read and Mr. Brackeen’s name read out by the clerk as foreman, and made no objection whatever.”

It was too late to make any such objection on motion for new trial. •

Besides, with the explanation of the court, no injury whatever is shown to have occurred or could possibly have occurred to the appellant by reason of the misspelling, if so, of this juror’s name.

The last four hills, 17, 18, 19, and 20, are objections to the claimed remarks of the attorneys for the state in argument to the jury. It is unnecessary to quote these claimed remarks. On the hearing of the motion for new trial, the court heard evidence thereabouts, and the attorneys for the state denied, in substance, making the remarks as claimed by the bills. The court thereupon refused to allow the bills, showing in explanations to each of them, in substance, that the remarks were either not made, or, where any of them were in substance made, they in no way injured the appellant, and showing, also, that the evidence justified the remarks where they were made.

The appellant asked no special charges to exclude any or all of these claimed remarks in argument by the state’s attorneys. The verdict of the jury fixed the penalty of the appellant at murder in the second degree, and gave him the lowest penalty thereunder.

No injury whatever is shown to have occurred by these remarks, even if they were made, and, by the appellant failing to ask special charges to exclude them, they were certainly at the time not deemed of sufficient importance to do this, which was required, under the law, in order that the questions might be properly considered by this court. We desire to say that, notwithstanding the bills of exceptions above quoted present questions so defectively that this court cannot consider them, yet,- in connection with the record, in our opinion not one of them presents any reversible error, even if the questions attempted to be raised thereby had been properly presented.

There are about 30 grounds in appellant’s motion for a new trial. In them he complains of the various matters shown by his bills of exceptions above noted, and, in addition thereto, the refusal of the court to give two special charges requested and complains of the court’s charge in some particulars.

Among the complaints of the charge of the court is one to paragraphs 10 and 11, as to the charge of the court about murder in the first degree. As the appellant was acquitted of this and given the lowest penalty for murder in the second degree, whatever errors, if any, may have been in said charge about murder in the first degree, cannot, and did not, affect the appellant.

The fifteenth, sixteenth, and seventeenth paragraphs of the court’s charge are as follows:

“(3) If you believe from the evidence beyond a reasonable doubt that the defendant with his implied malice, as that is here-inbefore explained, in a passion aroused without adequate cause, did either alone, or acting together with Bill Swink as a principal, as principal is hereafter explained to you, in Lamar county, Tex., at or about the time charged in the indictment, unlawfully kill and murder the infant child of Willie Wilbur by then and there breaking its neck and disjointing and dislocating the neck of said infant child by twisting the head and neck and pulling the head and neck of said infant child with his (defendant’s) hand and fingers, and if you further so believe that the said infant child was without a name, and if you believe from the evidence beyond a reasonable doubt, that the defendant either alone, or acting together with Bill Swink as a principal, as that term is hereinafter explained to you, did, in Lamar county, Tex., at or about the time charged in the indictment, with his implied malice aforethought (as that is explained), in a passion aroused without adequate cause, unlawfully kill and murder the infant child of Willie Wilbur by pressing and mashing the head and bowels of said infant child with his hands and fingers, and by dropping and placing child into a night glass or slop jar, and you further so’believe that the said infant child was without a name, then you will find the defendant guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period the jury may determine and state in their verdict, provided it be for not less than five years, but, unless you do so believe, you will acquit the defendant.

“(16) All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or inore persons. the true criterion for determining who are principals is, Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all.

“(17) Before one can be held to be a principal, he must not only have been present when the offense was committed, but must have, in addition thereto, aided, encouraged, advised, or agreed to the commission of the same, with a knowledge of the unlawful intent of the person actually committing it.”

The first complaint of the fifteenth phragraph is to these words twice occurring therein, “in a passion aroused without adequate cause,” because the evidence did not raise any such question. These words should not have been in this charge. We can only account for their being there by presuming that the judge used one of the printed forms of charges which are so commonly used by judges, wherein the question of manslaughter is raised and submitted, and doubtless, as that question could not and did not arise in this case, the judge in the court below inadvertently failed to strike out those words. It was expressly held by this court in the case of Combs v. State, 52 Tex. Cr. R. 617, 108 S. W. 650: “We should not be inclined to reverse the case on the occurrence of these words in what is otherwise, in respects complained of, a most admirable charge, but we suggest to the court in view of another trial that this language should be omitted.”

In the Combs Case these words were used, “in a sudden transport of passion aroused without adequate cause.” Many cases whore the words “sudden transport of passion” were used have been reversed because of the use of such words when manslaughter arose and was submitted, but in this case, the appellant having received the lowest penalty for murder in the second degree, the use of the words complained of above could not be calculated to injure, and did not injure, the appellant. Besides, if the said words improperly used had any effect, at all, it was to place a greater burden on the state than ought to have been placed thereon, and inured to the benefit of the appellant, instead of against him. Article 723, C. C. P.

Complaint is also made of said paragraph 15 because there was no evidence tending to show that Swink killed the child, or, if so, that appellant was present or acting in such a manner as would make him a principal to the alleged crime.

Complaint is also made that- the court erred in submitting to the jury whether or not the child was killed by having been thrown in a slop jar or night glass, or by having its head and bowels mashed and pressed, claiming that the evidence raised no such issue, and there was no evidence that such injuries resulted in its death.

Complaint is also made to the sixteenth and seventeenth paragraphs charging on the law of principles because the evidence did not raise such issue as to appellant, and it is claimed the jury was probably misled in believing that, if Swink or Willie Wilbur killed the child at any time on the night of the alleged killing, appellant would be guilty as a principal, and to infer that the court was of the opinion that such was a fact, and that said paragraphs are mere abstract propositions, and do not contain correct statements of the law of principals, nor do they tell the jury under what circumstances and conditions defendant would be guilty as a principal in the event the child was killed by some one else, and that said charge does not tell the jury that, in order to be guilty as a principal, appellant must have been present and aiding the commission of the offense, and, if not present and so aiding, the jury were left to infer that appellant would have been guilty as a principal, although not present or doing anything in aid of Swink or whoever was committing the crime.

Prior to the enactment of article 723, C. C. P., in construing that article, as it had theretofore been, in connection with article 715, this court had reversed cases where mere technical errors of commission or omission had been in the charge of the court. The Legislature in amending article 723, as it was amended by the act of March 12, 1897, expressly enacted that the judgment shall not be reversed, unless the error appearing from the record was calculated to prejudice the rights of the defendant; whereas, before then, said article, as it stood, seemed, and was construed, to require a reversal whether such error was calculated to injure or not. Even before this article was amended, the Supreme Court in Wright v. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant, and cases prior to Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094, which held that where erroneous charges were given, if excepted to, even though such injury inured to the benefit of the accused, required a reversal, were expressly overruled by this court. In Briscoe v. State, 37 Tex. Cr. R. 464, 36 S. W. 281, on a trial for murder, where the evidence established murder in the first degree, it was held that defendant could not be heard to complain that the court gave him a charge upon murder in the second degree; also, in Gonzales v. State, 35 Tex. Cr. R. 339, 33 S. W. 863, 60 Am. St. Rep. 51, this court held that a defendant who had been convicted of manslaughter could not claim any possible injury from a charge on mutual combat, even when such charge was not required by the evidence, and that a charge upon imperfect self-defense, though not called for by the evidence, could do no possible harm to appellant where there was no self-defense in the case. It has also been held in many eases by this court that, even though a specific portion of the charge of the court may be erroneous, when it is more favorable to the accused than he was entitled to upon the particular questions, he had no ground to complain. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Scruggs v. State, 35 Tex. Cr. R. 622, 34 S. W. 951; Delgado v. State, 34 Tex. Cr. R. 157, 29 S. W. 1070; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233; Daud v. State, 34 Tex. Cr. R. 460, 31 S. W. 376; Loggins v. State, 32 Tex. Cr. R. 364, 24 S. W. 512; Lujano v. State, 32 Tex. Cr. R. 414, 24 S. W. 97; Boren v. State, 32 Tex. Cr. R. 637, 25 S. W. 775; Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094; Kelley v. State, 31 Tex. Cr. R. 216, 20 S. W. 357; Sutton v. State, 31 Tex. Cr. R. 297, 20 S. W. 564; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758; Wolfforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741; Gonzales v. State, 31 Tex. Cr. R. 508, 21 S. W. 253; Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; Surrell v. State, 29 Tex. App. 321, 15 S. W. 810; Hawthorne v. State, 28 Tex. App. 212, 12 S. W. 603; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; McCleaveland v. State, 24 Tex. App. 202, 5 S. W. 664; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991.

We believe that these cases and many others later decided to the same effect and the proper construction of said article 723, as it now stands, does not authorize this court to reverse the judgment in this ease, even though there may be some technical omissions or commissions in the paragraphs of the charge of the court in this case, and especially is this the case when the appellant has requested no charge on the subject, and thereby not given the lower court an opportunity to correct any such commission or omission before the verdict of the jury.

The only other complaint of the charge of the court and of the refusal of special charges requested which are of sufficient importance to require notice by us is the complaint of appellant in his motion for new trial as to the charge given by the court, and the refusal of his charge on the question of whether or not Willie Wilbur was an accomplice, and whether or not these charges submit properly the question of the necessary corroboration of her if she was an aceom-l>liee.

After a most careful consideration of the evidence on this subject, we believe that in no proper consideration of the evidence does it tend to show that she was an accomplice in the killing of the child, and while she was necessarily present at the birth and for several hours before the death of the child, whether it was killed or died from natural causes, she is nowhere shown by any direct testimony, or by any proper deductions from any of the testimony, to have done or said anything to indicate that she in anyway participated in the killing of the child. There is some suggestion by appellant that she may have been guilty of abortion. If' appellant had been charged with this offense, this court has repeatedly held that she would not have been an accomplice therein. Watson v. State, 9 Tex. App. 238; Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602, and other cases.

The first special charge requested by appellant, omitting the heading and signature thereto, was; “I charge you that, if you do believe that the child’s neck was broken as alleged in the indictment, this would not be sufficient to corroborate the witness AATlbur.” The court refused this, but doubtless because of the request therefor, in paragraph 23, charged:

“The fact, if it is a fact, that the child's neck was broken as alleged in the indictment, then this would not be sufficient to corroborate the witness AVilbur.”

In our opinion this charge should not have been given, 'but that fact should have been left to the jury for its consideration on the subject, instead of prohibiting their doing so, but appellant, having asked and the court at his instance having given this charge, certainly has no ground to com plain thereof.

The court among other charges gave these:

“If you believe tne infant child was prematurely born, and that its death was caused thereby, or if you have a reasonable doubt thereof, you will acquit the defendant.

“If you believe that the child died from natural causes, or if you have a reasonable doubt thereof, you will acquit the defendant.”

The other special requested charge by appellant and refused by the court, omitting the heading and signature thereto, was as follows: “1 charge you that the evidence in this case shows that AVillie AVilbur, the witness ■ introduced by the state in said cause, is an accomplice, provided you believe that the child’s neck was broken as alleged. I therefore charge you that unless you believe that said AVillie AVilbur is corroborated in her testimony in said cause, though you should believe that said offense was committed, and that the defendant committed it, yet you cannot convict the defendant upon her testimony, unless you believe same has been corroborated by other testimony, other than that a crime was committed, if there was any committed.”

The court on the subject of accomplice and the corroboration of her testimony gave these charges:

“A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. An ‘accomplice’ as the word is here used means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before, at the time, or after the commission of the offense, and whether or not she was present and participated in the commission of the crime.”

“Now, if you are satisfied from the evidence that the offense charged was committed, and you further believe that the witness Willie Wilbur was an accomplice, or you have a reasonable doubt as to whether she was or not, as that term is defined in the foregoing instructions, then you are further instructed that you cannot find the defendant guilty upon her testimony alone, unless you first believe that her testimony is true, and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of Willie Wilbur’s testimony tending to connect the defendant with the offense charged, and the corroboration is not sufficient, if it merely shows ithe commission of [the offense charged.”

“Corroboration as to matters immaterial, and which do not tend to connect the defendant with the commission of the offense charged, is not sufficient.”

And paragraph 23 of the court’s charge above copied.

As stated above by us, we believe that Willie Wilbur was not an accomplice, but, as the appellant reguested charges on that subject, even going to the extent of requesting the court to specifically state that she .was an accomplice, the charge of the court on the subject was substantially correct, and much more favorable to appellant than was requested by him, except that he did not charge in so many words, as requested, that she was an accomplice.

It has been uniformly held by this court that unless the evidence, without doubt, shows that a witness is an accomplice, the court must submit that qu