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er; that witness then turned across the gotten appellant to stay with his son at other
street; that he did not notice where appel- times, and he had been sleeping with his son
lant went, but that there were several boys in the latter's room; that it was customary
standing in front of a drug store on the cor- for the boys to play dominoes all night.
ner towards which he was going. There was Appellant's father testified that about 11
nothing unusual in the fact that appellant o'clock on Sunday night he called appellant
was sitting on the sidewalk at the point out of the hotel and talked to him some 5 or
where Roger's and Stevens saw him. It ap- 10 minutes.
pears to have been customary for people to Barber testified that on Saturday night he
sit on the edge of the sidewalk in that part and appellant had arranged to go hunting
of the town.

on Monday; that witness was a brakeman on
The foregoing is a brief but substantial the local train; that early Monday morning
summary of all the state's testimony in appellant met his train, when witness in-
opening the case. Appellant proved by one formed him that he could not go hunting,
Harris that on the Sunday in question he had but would have to work that day; that ap-
been to Omaha to visit a young lady whom pellant went with witness to the latter's
he had since married; that he returned to house, and from there back to the caboose,
Mt. Pleasant between 8 and 9 o'clock that where witness changed clothes; that about
night; that he went to the Main Hotel, which 7 o'clock appellant left, going towards town.
was run by Frank Wilkinson; that between Miss Alleene Russell, daughter of Mrs.
10 and 11 o'clock appellant and Edwin Sugs Connie Russell, testified that appellant had
came to the hotel; that witness, appellant, not been at her mother's house the day or
Sugs, and Buck Wilkinson (a son of the hotel night before his arrest, until he came there
proprietor) played dominoes in the lobby of with Sheriff Reeves and Deputy Anderson ;
the hotel until the train came in about 4 that he did not answer a telephone call from
o'clock in the morning; that some time dur- there early that morning; that it had been
ing the night some one called appellant from several days since appellant had been there;
the hotel and talked to him on the porch ; ; that at this time he was staying at the
that witness and the other boys waited for Main Hotel; the people who usually stayed
him to come back to go on with the game; at their house were witness, her mother, her
that appellant did not leave the hotel, as brother, and a Mr. Polk; the brother was not
witness could hear them talking, but did not at home at this time, but had been at his
know what the conversation was about nor grandfather's about a week; witness knew
who the other party was; that about 4 nothing about the suit cases or how they
o'clock Buck Wilkinson and appellant left, came to be at the house.
saying they were going to the restaurant to Mrs. Connie Russell, appellant's sister, tes-
get something to eat; that Sugs left, going tified that it had been several days since ap-
to his sister's, Mrs. Cokers; that appellant pellant had been at her house, but that he
went to bed in Buck's room.

was staying at the hotel with Buck WilkinSugs was not a witness. His home ap- son; when he did stay at her home he slept pears to have been in Oklahoma, and he was with her son in the same room with her and on a visit to Mt. Pleasant at the time of the her daughter; her son at this time was at his burglary.

grandfather's; that Mr. Polk roomed there, Buck Wilkinson, the night clerk at his fa- ; and came in sometime Sunday night; that ther's hotel, testified that his duties and the witness found two grips or suit cases in the train schedule required him to remain up all back hall and reported it to the officers, night; that appellant had been staying with but did not know how they came there; that him for several nights preceding the Sunday appellant was not at her house on Monday night in question, and would sleep during until he was brought there by the officers; the day. Witness' testimony is substantially that he was not there early in the morning, the same as that of Harris, except this wit- and that he talked to no one over the teleness says it was about 12 o'clock when some phone from there. She denied that early on one called appellant from the hotel that Monday morning she told Chapman appelnight; he heard them talking on the porch, lant was there asleep. and heard appellant step off on the walk; | Appellant testified, admitting that he was that he was gone some 30 or 40 minutes, when sitting on the curb near the burglarized store he returned, and the domino game was re- just as testified to by Rogers and Stevens ; sumed; that between 3 and 4 o'clock witness that a short time before that he had been and appellant went to the restaurant to get talking to Sugs, who had gone to see a young something to eat; from there witness return- lady, and that he was waiting around town ed to the hotel, and appellant went towards until Sugs came back; that Sugs had told him the depot.

that he had been invited to a game at Duffle's Frank Wilkinson, the proprietor of the house, and it was upon this information from hotel, testified that when he retired on Sun- Sugs that he had informed Chapman as to day night between 10 and 11 o'clock appellant said game; that he had helped Mr. Chapman was at the hotel, and the boys were arrang- on previous occasions, and given him infor

(248 S.W.) only upon Sugs' information that he re- shown to be in possession of the stolen goods, ported the matter. He further testified that, or exercising over them control of any charafter Rogers left him as they walked up the acter, or asserting ownership therein. Lemstreet together, he (appellant) walked on to on v. State, 89 Tex. Cr. R. 361, 231 S. W. 388, the corner and talked to some boys in and authorities therein cited. We rega'i the front of the drug store for a while, and facts upon which this conviction rests to be gives an account in detail of his movements even weaker than those recited in Moore's until the time he went to the Main Hotel ; Case, 91 Tex. Cr. R. 46, 237 S. W. 258. It that while he, Harris, Sugs, and Wilkinson appears from the testimony that a Mr. Polk were playing dominoes at the hotel appel- had a room at Mrs. Russell's; that at some lant's father came and called him out some hour Sunday night he came to the house. 12 or 15 steps away from the hotel porch, He was not used as a witness, and no effort and there had a conversation not lasting was made to account for his movements durover 20 minutes, when he returned and re- ing the night. We do not mean to intimate sumed the game; that he remained at the that he was connected in any way with the hotel until about 3 or 4 o'clock in the morn- burglary, but mention this to point out the ing, when he and Buck Wilkinson went to weakness of the state's case. There seems the restaurant to get something to eat, and to be no controversy about his presence in from there he went to the train to meet Bar- the house where the stolen goods were found, ber; that after leaving Barber at the train whereas it is a sharply drawn issue whether appellant came back to town; that Ander- appellant was there until taken there by the son, the deputy sheriff, asked him to go officers under arrest. Every circumstance with him after some witnesses, saying he which the state could claim to be in any would be back in a little while. Appellant wise even suspicious is explained in a mandenied that he went to his sister's (Mrs. Rus- ner consistent with appellant's innocence. sell's) at any time that morning. He says The facts to our mind are not consistent with Anderson told him about the burglary, and each other, and the circumstances are not that he told Anderson when they got back of a conclusive nature producing a reasonato town he would make some inquiry, and ble certainty that appellant, and no other if he could find out anything about it he person, committed the burglary. would report the matter; that as they were [2] If this case should be tried again the leaving town he saw Chapman and told him statements of Chapman that Mrs. Russell practically the same thing; that Anderson told him over the phone that appellant was found the witnesses had moved, and instead at her house and asleep should be excluded of getting back to town within a short time, as hearsay. As we understand the record as they had expected, it was somewhere in Chapman testified to this on direct examinathe neighborhood of 3 o'clock in the after- tion. The presence of appellant at her house noon before they got back; that on the way was controverted, and hearsay testimony on back the sheriff met them and arrested ap- the issue was harmful. pellant; that they went to Mrs. Russell's The character of examination of the withouse, which was the first time he had been ness Anderson by the district attorney should there that day, and had not been there the not occur on another trial. He was a state's night before; that he had been staying with witness. He denied that appellant bad made Buck Wilkinson at the hotel about 3 weeks any criminative statement to him. The exprior to that time. Appellant denied having amination could not help but impress the any knowledge that the stolen goods were at jury that the witness was either withholding his sister's house, or how they came there. evidence beneficial to the state, or that the He also denied that he was in the restaurant attorney believed this to be a fact. If the on the Sunday night in question with a rope attorney was surprised at Anderson's eviin his hand, as testified to by one of the wit. dence, he cannot so claim on another trial. nesses for the state. He said he did some He was not giving damaging evidence against times help handle cattle, and might at some the state, but refusing to give testimony in other time have been in there with a rope; its favor. that he had nothing to do with the burglary, We do not think it was necessary to go inand knew nothing about it until he was in- to all the details of the alleged conversation formed of it by Anderson on Monday morn- between appellant and his father at the ing when he started with him after the wit- botel, but, it having occurred under peculiar

circumstances and at an unusual hour, the We have given the substance of all the subject of conversation should be revealed ir evidence, both for the state and appellant. thereby verity would be added in establishWe are of opinion it falls short of meeting ing that the conversation occurred. the requirements of the law before a convic The judgment must be reversed, and the tion can be sustained. Appellant was never cause remanded for retrial.

248 S.W.-44

nesses.

friendly talk about the buying of a shirt, WHITE v. STATE. (No. 6920.) and the appellant left the house. According (Court of Criminal Appeals of Texas.

to her testimony, he came back to talk about

Feb. 28, 1923.)

a settlement between them and wanted to

wear the shirt. Fannie Dunn testified that 1. Criminal law m522(3) - Confessions ob- . after the house was burned, she saw tracks tained by unlawful assault not voluntary. in the sand between the orchard and the

Confessions obtained by unlawful assault potato patch. The person making the upon accused are not admissible under Code tracks apparently had stepped over the wire Cr. Proc. 1911, art. 810, permitting introduc- fence and came to the hen house, walked tion of confessions of one accused of crime down the potato row to the peanut house, which are voluntary.

and then to the cowpen and into the road. 2. Witnesses Ow77-Allowing 10 year old ne- The tracks described by her and other wit

gro boy to testify held not abuse of discre- nesses for the state were sock-feet tracks. tion.

There was a hole in the sock, about two That the trial court in an arson prosecution inches across, which made an impression in permitted a 10 year old negro boy to testify to the sand. The tracks went by the "gooberdeclarations of accused, after the witness on house” and passed the hen house and down his voir dire had first said he did not know the road to a bridge across a creek about a what would be done to him if he told a lie, but half mile distant. Beyond the bridge, there that he would be punished, and saying on his cross-examination that he was not acquainted were no sock-feet tracks, but there were shoe with the obligation of an oath and did not know tracks. The shoe tracks were traced to the what an oath meant, held not an abuse of dis- home of the witness McCoy, where the appelcretion.

lant was found.

The officers who arrested the appellant 3. Criminal law 763, 764 (17)-Instruction

in arson case held erroneous as on weight of forced him to put his sock-foot in the tracks evidence.

found at the Dunn home, and according to In a prosecution of an 18 year old negro

the state's witnesses, the foot fit the tracks. boy for arson, an instruction that "in this case The witnesses were unable to say whether the court had introduced evidence tending to the tracks were fresh or old tracks, except prove the theft of a turkey and a chicken on that they did not look very old. or about the time the house was alleged to have Appellant testified that he was at McCoy's been burned," and that such testimony could house at the time of the fire, and his testibe considered only for the purpose of proving mony upon this subject was supported by the guilt of accused of the offense charged by several witnesses. circumstances connected with the theft, if any,

One witness for the state testified that he held erroneous as being on the weight of the had spent the night on which the fire ocevidence.

curred at the home of a neighbor of the wit4. Criminal law On 318–In cases of circum- ness McCoy. Quoting him, he said:

stantial evidence, inferences from evidence in state's possession, but not introduced, are in

"I got up about sunup the morning after the favor of accused.

peanut house was burned. When I got up, I In a case of circumstantial evidence, infer- McCoy and his wife, and Bessie Lee and Robert

seen Mr. Felix's wife and Felix, and Mr. Cap ences from evidence not introduced which are White. Robert, was at Cap McCoy's house. in the possession of the state are in favor of I did not talk to Robert. He just spoke to me; and not against accused.

he told us, 'Howdy,' and asked where I was Appeal from District Court, Harrison going. I told him I was going home, and he County; P. O. Beard, Judge.

told me that if I seen anybody asking for him,

don't tell them you saw me.' Robert White was convicted of arson, and he appeals. Reversed and remanded.

The witness said further that he heard Myron G. Blalock and Y. D. Harrison, both the appellant say to Cap McCoy that, “if I of Marshall, for appellant.

had got the turkey, wouldn't eat him now, as W. A. Keeling, Atty. Gen., and C. L. Stone, Miss Fannie had been feeding her chickens Asst. Atty. Gen., for the State.

nux vomit” (nux vomica) for hawks. The tes

timony of this witness was controverted by MORROW, P. J. Conviction is for arson; appellant and other persons present at the punishment fixed at confinement in the peni. JcCoy home. tentiary for a period of five years.

There was some evidence that the fire was A “goober-house" belonging to Fannie caused by spontaneous combustion. Dunn was burned. The fire occurred at After appellant was arrested by officers, night, and it was not discovered until the he was struck by one of them in the mouth. following day. Appellant, a negro boy about The officer said: 18 years of age, had previously been living "I think I hit him with my fist once and slapat the home of Fannie Dunn; but a short ped him once. I struck him in the mouth as time antecedent to the fire they had some un- hard as I could hit him.”

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(248 S.W.) This officer also testified that the appel-S. W. 669; Munger v. State, 57 Tex. Cr. R. lant was laid across a log; that his clothes 384. 122 S. W. 874. were removed, and that he was whipped by In instructing the jury, the court used the officers with a switch, which one of them this language: described as being "about the size of my little finger or a little larger than my little dence tending to prove the theft of a turkey

In this case the court had introduced evifinger. It was as big as my biggest finger and a chicken on or about the time the house and was green. I didn't count the times I was alleged to have been burned. You are inhit Robert."

structed you can only consider such testimony [1] In addition to whipping the appellant, for the purpose for which it was admitted, that the officers told him that, if he did not con- is, to prove the guilt of the accused of the offess, they would take him to town and put (fense charged by the circumstances connected him in the “shocking machine." They with the theft, if any, and you will consider it forced him to put his feet in the tracks. The for no other purpose." statute, article 810 of the Criminal Code, permits the introduction of the confession of [3] This charge was made the subject of one accused of crime which is "voluntary.” | an exception because it was on the weight Both the Legislature and the courts have of the evidence. It is couched in language been alert to see that the confession was which has heretofore been so characterized. voluntary. We presume that the efforts of See Leach v. State, 46 Tex. Cr. R. 509, 81 S. the officers in the instant case revealed by W. 733; Reese v. State, 44 Tex. Cr. R. 34, 68 the testimony was directed to securing such S. W. 283; Hollar v. State (Tex, Cr. App.) a confession. In these efforts, they were un- 73 S. W. 961; Cortez v. State (Tex. Cr. App.) saccessful, though doubtless proof of them 74 S. W. 907; Cavaness v. State, 45 Tex. Cr. impressed the jury that the officers believed R. 209, 74 S. W. 908; Gustamente v. State, appellant guilty. According to their own 81 Tex. Cr. R. 640, 197 S. W. 999; Reese v. testimony, they made an assault which was State (Tex. Cr. App.) 70 S. W. 424. unlawful and accompanied by no mitigating The evidence that appellant stole a chickor justifying circumstances. Confessions ob- en and a. turkey is meager and inconclusive. tained under such conditions are violative of They were not found in appellant's possesthe statute and of the rights of the ac- sion. Fannie Dunn said that she lost a cused. Zeal on the part of the officers chicken and a turkey. She did not describe should never lead them to use violence to them nor state the kind of feathers they procure a confession which the law demands wore. A witness testified that every once in shall be voluntary. See Williams v. State, a while he saw some feathers between the 88 Tex. Cr. R. 87, 225 S. W. 177; Bozeman v. house of Fannie Dunn and the bridge, some State, 85 Tex. Cr. R. 653, 215 S. W. 319; of which were black and other Plymouth Robertson v. State, 81 Tex. Cr. R. 378, 195 Rock; that he also saw feathers about the S. W. 602, 6 A. L. R. 853; Finks v. State, chicken house. There was testimony that 84 Tex. Cr. R. 536, 209 S. W. 154.

there were feathers about the premises of The witness who testified to the alleged McCoy; that feathers were found about the . declarations of the appellant was a 10 year barnyard and upon the road, but in the old negro boy, whose qualification as a wit- absence of some definite identification of the ness was challenged upon the ground that feathers with the lost fowls, this evidence, he had insufficient knowledge of the nature considered alone, is of little weight. of an oath. On his voir dire, he said first [4] The evidence of appellant's guilt is that he did not know what would be done to not so conclusive as to render harmless him if he told a lie, but that he would be the charge mentioned. Circumstances alone punished. On his cross-examination he said were relied upon. The evidence touching the that he was not acquainted with the obliga- sock-foot tracks about the premises and in tion of an oath, and did not know what an the road going as far as the bridge is not oath meant.

altogether inconsistent with the innocence of [2] The bill presenting this question for the accused. He had been an inmate of the review consists, in the main, of questions home up to one or two days before the fire and answers, and we think is hardly suf- occurred, and he had walked about the ficient to require consideration. Rylee v. premises. Whether in his sock-feet State, 90 Tex. Cr. R. 482, 236 S. W. 744. otherwise is not disclosed; whether the Suffice it to say that under the rule prevail-tracks were fresh or old is not shown. The ing in this state, touching the competency of sandy character of the ground, according to a child, we express the opinion that in ad- some of the testimony, rendered it difficult mitting the testimony of the witness, the dis- to identify the tracks. Assuming, however, cretion vested in the trial court was not that they were his tracks, there is an absence abused. See Branch's Ann. Tex. Penal Code, of evidence of tracks coming to the premises. $ 1771, and cases listed; also, Ake v. State, The person who made those found was going 6 Tex. App. 402, 32 Am. Rep. 586; Mur-away, and according to the theory of the phy v. State, 36 Tex. Cr. R. 29, 35 S. W. 174; state, was going to the home of Cap. McCoy, McCormick v. State, 52 Tex. Cr. R. 494, 108 where the appellant was found. He went

or

from the home of Fannie Dunn to that of Cap ,3. Homicide Bmw 166(2)-Evidence of defendMcCoy only a short time before the fire. The ant's statements shortly before killing held person who made the sock-foot tracks made

pertinent as bearing on cause. that character of tracks no further than the

In a murder prosecution where defendant bridge, which was a half mile from the home claimed deceased had insulted his wife, and of Fannie Dunn, and as we understand the the state contended the killing was brought.

about because of a quarrel between defendrecord, about a quarter of a mile from that of ant's and deceased's children, permitting wit. Cap McCoy. There were tracks made by ness to state that on an occasion, shortly before some one who was shod from the bridge to the killing, she heard defendant tell his chil. the home of McCoy. Appellant, when ar-dren to pick up a rock and knock deceased's rested, had on a pair of shoes. Upon the children in the head, was pertinent to the subject of a comparison of the shoes that ap

state's contention. pellant was wearing with the tracks which 4. Criminal law On982-State may show apwere made by the person shod and going plicant for suspended sentence to be of bad from the bridge to McCoy's home, the record repute. is silent. The state's witnesses were in pos

Where defendant in a murder prosecution session of the shoes and of knowledge of the filed an application for suspended sentence tracks. Whether the evidence would have been and had formerly lived in another county, the favorable to the appellant or not is left in state could properly show that while there his

general reputation as a peaceable law-abiding doubt. In a case of circumstantial evidence, citizen was bad. inferences from evidence not introduced which are in the possession of the state are 5. Homicide am 309(6)-Issue of manslaughter

should have been submitted on theory of de. in favor of and not against the accused. See

fense untrammeled by connection with other Parish v. State, 85 Tex. Cr. R. 75, 209 S. W.

conditions. 678. Footprints, when associated with other

In a prosecution for murder where the theincriminating circumstances, are often impor

ory of the state was that the killing was caused tant elements in a case of circumstantial evi- by a quarrel between defendant's and dedence. Finch v. State, 89 Tex. Cr. R. 367, 232 ceased's children, and defense claimed that deS. W. 528. But when not so associated, ceased had insulted defendant's wife and that they have often been deemed inadequate to the killing occurred at a meeting shortly thereidentify the accused. See Warren v. State, after, an instruction on the law of manslaugh52 Tex. Cr. R. 218, 106 S. W. 132; Gill v. defense, untrammeled by connection with other

ter that did not submit defendant's theory of State, 36 Tex, Cr. R. 594, 38 S. W. 190.

conditions, was error. Taking into account the weakness in the evidence of guilt, the charge of the court to which we have adverted is deemed of a

Appeal from Criminal District Court, Tarnature calculated to injure the rights of rant County; George E. Hosey, Judge. the appellant.

J. G. Shirley was convicted of murder, and From what has been said, it follows that he appeals. Reversed and remanded. in the opinion of the court the judgment McLean, Scott & McLean and Sam. R. should be reversed, and the cause remanded, Sayers, all of Fort Worth, for appellant. and this is ordered.

Jesse M. Brown, Criminal Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J. Appellant was tried under SHIRLEY V. STATE. (No. 6909.) an indictinent charging him with the murder

of one Robert Thompson; conviction follow(Court of Criminal Appeals of Texas. Feb. 28, ed, with punishment assessed at 10 years' 1923.)

confinement in the penitentiary.

Shirley and Thompson lived across the 1. Criminal law m1091(11)-Bills of excep- street from one another in the city of Fort tions should not consist of questions and an- / Worth. Late in the afternoon of the day swers.

upon which the homicide occurred, Thompson Bills of exceptions, consisting of questions left his home and went to a little store loand answers only, will not be considered.

cated near by, passed through the store to 2. Homicide 338(2)-Statements of witness the rear, and asked for some meat. Thomp

as to reason for deceased being in his store son had not been there more than a minute just before meeting defendant held not to and was standing by the counter waiting for affect plea of self-defense.

the butcher to cut the meat for him, when In a murder prosecution, statement of wit- Shirley walked into the store and, approachness that, when deceased came into his store ing Thompson, said, “You s—n of a bh," where the killing occurred, he “ordered some meat for his lunch that night," objected to be- and immediately stabbed him with a knife. cause not made in defendant's presence, held They then clinched, and Thompson secured not to affect the plea of self-defense.

a pistol which was lying on the counter near

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