Bailey v. State

• Decision Date: 12 October 1887
• Citation: 9 S.W. 270
• Parties: BAILEY <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

9 S.W. 270

BAILEY

v. STATE.¹

Court of Appeals of Texas.

October 12, 1887.

Appeal from district court, Wharton county; W. H. BURKHART, Judge.

Indictment against George Bailey for the murder of John Smith. Verdict of guilty, and judgment of death. Defendant appeals.

The proof shows that John Smith was assassinated from ambush on the Harrison farm, in Wharton county, Tex., on the night of December 1, 1886. A pool of blood on a road marked the point where Smith received the shot and fell, and down-trodden weeds, a few steps off the road, marked the point from which the fatal shot was fired. A small trail from the said blood-pool indicated the route over which the body was transported to another point, near a house known as the "Middle Quarter," where, as shown by a second pool of blood, the body was deposited for a short time. Thence the trail led to a point off the road where, in a thick cluster of high weeds, the body of Smith was found. A license, authorizing him to marry one Alice Ward on the next day, December 2d, was found on his body. It was shown that it was generally understood on the said farm that Smith and Alice Ward were to be married on the said date, and that several of the men on the place objected to the marriage; that a rumor was current that defendant and others were in a conspiracy to run the defendant off to prevent the marriage; and that, for some time previous to the assassination, the defendant had maintained illicit relations with the said Alice Ward. On the morning after the killing of Smith, the defendant's house was entered, and a pair of black pants and a pair of boots he was known to have worn on the day and night before were found, — the said pants and boots being very bloody. Bob Jones, the accomplice, testified, in substance, that he went to Wharton with Smith on the fatal day, and that Smith on that day secured license to marry Alice Ward on the next day,—a fact that became generally known. He ate supper with defendant on that night, after which he and defendant started to the "Middle Quarter." En route, defendant showed him a pistol which he said he bought from Burton Jones. At a certain point the defendant left the road, and went to a point in the weeds five or six feet distant, and squatted down. He then called witness, and forced witness to squat down behind him. Within a very short time Smith, traveling the road, reached a point opposite the ambush, when defendant fired upon him three times. Smith fell, exclaiming: "Oh, Lordy! I am shot!" Witness started to run, but defendant covered him with the pistol, and compelled witness to help him take the body to the place where it was found, resting once, en route, at the point near the "Middle Quarter" where the second pool of blood was found. Defendant then forced witness to go home with him, and spend the night; threatening to kill witness if he told anything about the shooting. On their way back to defendant's house they met Eliza Wilson, Louisa Stuart, and Charity Bailey, one of whom asked defendant to go with her to look for Smith; remarking that she heard shots, and was afraid he was hurt. Defendant replied that he knew nothing about it. Defendant wore the pants and boots which were taken from his house on the next morning. He left for Colorado county on the morning after the killing. The women named by this witness testified that they met defendant and the witness Bob Jones, a few minutes after the shooting, at the point stated by said Jones, and that the conversation stated by Jones transpired. Witness told Hindon next morning all about the killing, and pointed out to him the various points mentioned in his testimony. He also made a voluntary statement at the inquest, — the same, in substance, as this testimony. The state proved that part of the defendant's voluntary statement which was not drawn out by questions. It was to the effect that he and Charley Whetsey, Dan Ward, and Sam Grant entered into a conspiracy to run Smith off before his marriage with Alice Ward; that on the night of and just before the killing Dan Ward overtook him and Bob Jones in the road, and asked him if a pistol he had would snap; that about that time Whetsey and Grant appeared at one point on the road, and Smith at another; that Whetsey or Grant fired two shots at Smith; that Ward then ran forward, saying, "I am going to shoot that fellow;" that he requested Ward not to shoot him, but to shoot at, frighten, and run him off; that Ward fired, and shot Smith; that he then proposed to take Smith to the quarters, but Ward objected, and that Ward and Whetsey and Grant then went to Smith's body and turned it over. The state then proved that neither Grant, Whetsey, nor Ward were at the place of the shooting. It also proved that defendant got the pistol from Burton Jones, as stated by Bob Jones. The defense offered no other evidence than Bob Jones' statement on the examining trial, which, though not so full, was substantially the same as his testimony on this trial.

R. M. Brown and G. G. Kelley, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

The appellant was tried on the 4th day of March, 1887, for the murder of John Smith; the trial resulting in conviction for murder in the first degree, with the...