Aud v. State

• Decision Date: 06 May 1896
• Citation: 35 S.W. 671
• Parties: AUD et al. v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 671

AUD et al. v. STATE.

Court of Criminal Appeals of Texas.

May 6, 1896.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Ella Aud and Edgar Townsend were convicted of murder in the second degree, and appeal. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

The appellants were tried together on a charge of murder, were convicted of murder in the second degree, and each given a term of 20 years in the penitentiary, and from the judgment and sentence of the lower court they prosecute this appeal.

1. On the trial of the case, the prosecuting attorney, in his speech to the jury, said: "Mr. Carr, you are the only man on the jury who answered that you knew Ella Aud. The country expects that you do your duty;" and the county attorney, just previous to this, asserted in a most positive manner "that the defendants were guilty, and ought to be convicted." It appears from the bill of exceptions that the juror Carr had answered that he was slightly acquainted with the defendant Ella Aud Appellants objected to these remarks, and also the following remarks of said attorney: "They ask you to turn this man loose, and then, when you do that, if a new trial should be needed for the woman, they want the man cleared so that they can get his testimony. At least, this is my judgment." Appellants excepted to these remarks of counsel. The court certifies that, on his attention being called to the matter, he reprimanded counsel for making said remarks, and the jury were instructed to wholly disregard them. He further certifies that the last above quoted remarks were not excepted to at the time. In this action of the court there was no error.

2. Appellant, on the trial of the case, introduced a witness by the name of Scaiff, who testified that Wade Allison, about the time that the defendant Ella Aud's baby was drowned, had arranged to take a trip with him to Austin or San Antonio. The defendant proposed to prove further by said Scaiff that said Wade Allison, during April, 1894, and prior to the 10th of April, 1894, told said witness Scaiff that he intended to get what money Ella Aud had, and that his (Allison's) father advised him not to let the grass grow under his feet until he got the money; he (Wade Allison) stating that the damned fool (Ella Aud) did not have a wink of sense, and that if he did not get the money, some other damn son of a bitch would, and that he had as well have it as anybody. This testimony, on objection, was excluded, and the appellant assigns the same as error. The bill shows that this testimony was the mere statement by one Wade Allison, a third party, to said Scaiff, not in the presence of the appellant, and as such was pure hearsay.

3. In motion for new trial appellants contend that one Slaton, who served on the jury, was not impartial, but had prejudged the case, and in support of their contention introduced the following affidavits:

"The State of Texas, County of Cooke. I, W. H. Moody, being duly sworn, on oath say that I know W. W. Slaton, who was a member of the jury that tried Ella Aud and Edgar Townsend for the murder of Wade Allison, at the present term of the district court of this county. I further say that on the evening before the said Slaton was accepted as a juror in said case, that I was standing at Judge J. E. Hayworth's gate, in the city of Gainesville, talking to said Hayworth; that while we were talking said W. W. Slaton came up to where we were talking at said gate. Said Slaton said to Judge Hayworth: `Judge, can they make me serve on a jury? I've got a job at the compress and don't want to stop. Dick Blackburn tried to summon me down town to-night, but I got off. If they want their damned necks broke, why just send for me, and I can damned soon break them.' Said W. W. Slaton, in the above conversation was referring to the defendants, Ella Aud and Edgar Townsend. Said Slaton then went on home, his home being in the city of Gainesville, about 150 feet north of me. I further say that on the next morning I went into the court room, and to my surprise saw that defendants had accepted the said Slaton as one of the jury, and that said Slaton did serve as a juror in the trial of said cause. I never told the defendants or either of their attorneys about the above until to-day, when they called on me, and asked me to tell them what I had heard Slaton say. I further say that I am in no wise interested in this case.

                                             his
                                           W. X H. Moody
                                             mark
                

"Subscribed and sworn to before me by W. H. Moody, this May 30th, 1894. [Seal.] J. H. Carr, Not. Pub. Cooke Co., Texas."

"The State of Texas, County of Cooke. I, J. E. Hayworth, on oath say that during the evening of the day that W. W. Slaton was summoned as talesman in the case of State against Ella Aud and Edgar Townsend said Slaton came to my gate, and asked me if he could get off the jury. I told him that he could if he had a legal excuse. Slaton then said, `I told Dick Blackburn when he summoned me that if they want me to, I would break their God damned necks.' J. E. Hayworth.

"Sworn to and subscribed before me this 30th day of May, 1894. [Seal.] P. H. Lanius, Notary Public, for Cooke Co., Texas."

"The State of Texas, County of Cooke. I, Dick Blackburn, on oath say that I am deputy sheriff of Cooke county, Texas, and as such assisted in summoning the talesmen in the case of the State vs. Ella Aud and Edgar Townsend. Court had adjourned for the evening without the jury having been completed, and the sheriff was instructed by the court to summon talesmen to be present at the meeting of the court at 8:30 o'clock a. m. the following morning. During that evening, while looking for talesmen, I saw W. W. Slaton, and, knowing that he was working at the compress, I asked him if he was going to work to-morrow. He said he would. I then told him I would not summon him. The next morning, before the meeting of the court, I saw W. W. Slaton standing in the courthouse door, and summoned him. W. W. Slaton at no time made any objections to being summoned on the jury. Dick Blackburn.

"Sworn to and subscribed before me this May 30, 1894. [Seal.] J. F. Lilly, Clerk District Court Cooke Co., Texas, by W. H. Aughtry, Deputy."

"The State of Texas, County of Cooke. In the District Court of Cooke County, Texas. I, J. R. Stevens, on oath say that I am a carpenter by trade, a resident of Gainesville, Texas, and I am fifty-eight years of age. About three weeks ago, while J. A. Cowart, B. H. Boone, and myself were engaged in working on a house for Judge J. E. Hayworth, in Gainesville, Texas, and while we were resting at noon, we were visited by W. W. Slaton, who was afterwards a juror in this case. A conversation then occurred between us in reference to Ella Aud and Edgar Townsend, who were then in jail, charged with the murder of Ella Aud's infant child. In the conversation W. W. Slaton said that defendants, Aud and Townsend, were guilty, and ought to be hung; and that if he should be on the jury he would hang them as high as hemp would hang them. J. R. Stevens.

"Sworn to and subscribed before me, this the 30th day of May, 1894. [Seal.] W. T. Roberts, Notary Public for Cooke Co., Texas."

"The State of Texas, County of Cooke. I, J. A. Cowart, on oath say that I am resident of Gainesville, Texas, and a carpenter by trade, and was present at the conversation at the house of Judge Hayworth, mentioned in the foregoing affidavit of J. R. Stevens. I heard W. W. Slaton say in said conversation that the defendants, Aud and Townsend, were guilty, and ought to be hung, and that if he (Slaton) should be on the jury he would hang them as high as hemp would hang them. J. A. Cowart.

"Sworn to and subscribed before me this the 28th day of May, 1894. [Seal.] Ira B. Packard, Not. Pub. for Cooke County, Texas."

"The State of Texas, County of Cooke. I, B. H. Boone, on oath say that I am a carpenter by trade, and a resident of Cooke county, Texas, and that I was present at the conversation at the residence of Judge Hayworth about three weeks ago, mentioned in the foregoing affidavit of J. R. Stevens, and that the juror W. W. Slaton said in said conversation that the defendants, Aud and Townsend, were guilty, and ought to be hung, and that if he should be on the jury he would hang them. B. H. Boone.

"Sworn to and subscribed before me this May 28th, 1894. [Seal.] Ira B. Packard, Notary Public for Cooke County, Texas."

Appellants swore that they were ignorant of these statements until after the trial. Slaton responds to the charge of prejudice by stating: "I was a member of the jury that tried defendants, Ella Aud and Edgar Townsend, at the present term of this court. On qualifying on the stand as a juror, I stated that I had an opinion as to the guilt or innocence of the defendants, but that I could disregard that opinion, and try them on the law and the evidence, and that I could try the case as I could one that I never heard of. I also said that I probably expressed my opinion, but I don't remember how I expressed it, or something to that effect. But since my attention was called to it, I remember of one time that I expressed my opinion. The time that I expressed my opinion was when Judge Hayworth and Mr. Moody and I were at Judge Hayworth's gate as I was working at the compress, and Dick Blackburn summoned me as a juror; and when he first asked me I told him that I was at work, and he then said he would not bother me. That same night it rained, and the next morning I supposed they had a jury, and I came down to town; but that morning Dick Blackburn summoned me again, and I was taken. The conversation came about at Judge Hayworth's with Judge Hayworth and Moody in this way; because we were all laughing and talking about the case. I don't remember whether I asked Judge Hayworth whether they could make me serve on the jury or not, and don't remember what I did say about...