Bookman v. State (16 S.W.2d 123, 1928)

MORROW, P. J.

The offense is murder; punishment fixed at death.

The questions of law involved related to the motion to quash the first count in the indictment and the absence of proof of want of knowledge on the part of the grand jurors of the means used by the appellant in causing the death of the deceased.

The first count in the indictment contains an averment that the appellant killed Mary Bookman in some manner and by some means, instruments, or weapons to .the grand jurors unknown. The averment on its face is sufficient. Sanchez v. State, 46 Tex. Cr. R. 179, 78 S. W. 504; Hughes v. State (Tex. Cr. App.) 60 S. W. 562; Walker v. State, 14 Tex. App. 609. In refusing to quash the count mentioned, no error was committed.

The second count charges that the appellant killed the deceased by beating her with an axe handle. Both counts were submitted to the jury in the court’s charge.

The evidence adduced on the trial leaves uncertain the precise cause of the death of the deceased, but creates no doubt that she was killed by the acts of the appellant. Under such conditions, the averment in the indictment to the effect that the means used in causing the death was unknown to the grand jury is sufficiently proved. Forest v. State, 108 Tex. Cr. R. 159, 300 S. W. 51 ; Wharton on Homicide (3d Ed.) § 563; Wharton’s Crim. Law, § 658; Bishop’s New Crim. Proc. (2d Ed.) vol. 2, § 552; Mitchell v. State (No. 11739 Tex. Cr. App.) 10 S.W.(2d) 87, not yet [officially] reported. There was evidence before the jury that the appellant beat the deceased with a part of an axe handle; that he stood up and stomped her with his feet, having his shoes on; that he knocked her down with his fist, and that he kicked her with his feet, a few moments before she expired; that during his assaults he stated that he wanted to kill her. The scene of the tragedy (the home of the appellant and his wife) revealed manifestations of the assaults in the way of blood on the floor, the mattress on the bed, the axe handle, the deceased, and on the appellant. The appellant testified and introduced evidence that his wife was subject to sick spells accompanied by fits of unconsciousness'” and bleeding from the nose. He testified denying the assaults, and stated that, "while in the..yard after eating a hearty dinner, the deceased became ill and died while he was endeavoring to bring her in the house. Witnesses testified to the assaults, and the body of the deceased exhibited the effects of them as disclosed by the testimony of of- . fleers and others who saw her body after her death.

In the court’s charge, a conviction was authorized if the appellant “did voluntarily kill 'and murder Mary Bookman by some means, instruments and weapons as charged in the indictment.”

A doctor testified and described the condition of the deceased in the following language: “From her hips down to her knees, she was beaten blue. Instead of being black, she was blue. There were no broken bones, but she was badly bruised, and her neck had several bruises around on it, and there was one cut in the back of the head (near the crown of her hair) and a number of bruises on her abdomen. From the nature of those bruises on her gbdomen, as I saw them, it would be possible for licks or blows that would make bruises of that sort to cause internal injuries that would bring about death. As to what caused that woman’s death, in my opinion, I will state that my opinion would be an internal hemorrhage caused from injuries, or blows, or whatever was applied to her. If a person in that woman’s condition were to drink at one time, an hour or two before her death, a gallon or more of water, in my opinion, that would indicate an internal hemorrhage, and in my opinion, that is what caused that woman’s death. * ⅜ ⅜ If woman ka