Bennett v. State

• Decision Date: 16 November 1898
• Citation: 48 S.W. 61
• Parties: BENNETT v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 61

BENNETT v. STATE.

Court of Criminal Appeals of Texas.

November 16, 1898.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by the state against J. A. Bennett. Defendant was convicted of murder, and sentenced, from which judgment he appeals. Reversed.

Wear & Parr and Smith & Phillips, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he appeals.

In order to present the legal questions, and show their bearing and importance, we will give a summary of the facts proved; and in this connection we here insert a map of the scene of the homicide, together with the surrounding country:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

1, route said to be traveled by defendant going to and from scene of homicide; 2, route traveled by defendant in going to meet Hanks; 3, route traveled by deceased in going from Blum to place of homicide; 4, where Walter Wheeler met defendant, and rode with him about 100 yards.

The deceased, Mary Jenkins, lived with her husband on a farm in Hill county, several miles west of the town of Blum. There was also, as a part of the household, her brother-in-law, Rufus Jenkins, and her father, Mr. Boutinier, and a small child. Her husband conducted the farm, and she appears to have been a book agent, and was in the habit of selling books in the neighborhood, sometimes going in a buggy, and sometimes on horseback. She was evidently a woman of some culture, and her relations with her husband do not seem to have been pleasant. The defendant was a single man, and lived with a relative in the same neighborhood, some three or four miles from the home of the deceased. The record does not inform us that he had any settled employment. He was in the habit of riding about through the neighborhood, and generally carried a Winchester gun with him in his rounds. The testimony for the state tends to show that for some time antedating the homicide, perhaps a year, he was on terms of intimacy with deceased. On Friday morning, December 27, 1895, the husband of deceased and Rufe Jenkins, his brother, went in a wagon several miles northwest of where they lived for the purpose of getting a load of wood. Both going and returning, their route carried them within 150 or 200 yards of where the body of deceased was subsequently found. Before they left home, Rufe Jenkins saddled a roan horse, placing thereon his brother's saddle, to be used by deceased that morning to ride to Blum, some four or five miles east or northeast of their home. Deceased was seen in Blum by several parties, who testified in the case, during that morning, and while there purchased a quart bottle of whisky, the same being in a flat white flask. Between 1 and 2 o'clock she went to the house of one Nancy Gibbs, in Blum, riding said roan horse, and had with her, at the time, a satchel, and also the flask of whisky. While here she proposed that Mrs. Gibbs should read a letter which she had written, but had not sealed, but, being interrupted, she put it back in her satchel, stating that she would let her read it some other time. She left here, evidently on her way towards her home, between 1 and 2 o'clock. The testimony does not show that she was afterwards seen alive, unless the person Walter Wheeler saw riding about 100 yards ahead of defendant, in the direction of the cedar brake, where her body was found, was the deceased. Tracks of her horse were traced from Belknap, down the Blum and Kimball road, and thence northwest to the brake, where her body was found. The horse appeared to have stopped about 20 steps from where her body was found, and there the deceased's tracks were seen. The horse was traced from this point out into the lane leading to Vedders'. Witness Wheeler saw defendant at the crossing on Belknap as he was going down to the Gwinn place. He states that, as he was going along the road, he saw defendant coming up from below the crossing, leading his horse up the bank of Belknap creek; that he came into the highway, and they rode together a piece, going in the direction of the high house west of Blum. This, he says, was between 1 and 3 o'clock; that defendant, after riding with him a short distance, loped off; ahead of him about 100 yards was some person going in the direction of the brake; that he did not recognize the party, and did not know whether it was a man or a woman. On that Friday evening, late, the horse ridden by the deceased, with the saddle on, and bridle thrown over the horn of the saddle, was seen at Vedders', which is about three-fourths of a mile up the lane east of where the body was found. This was some time about 4 o'clock. The deceased not returning to her home on Friday night, search was made by her husband and others early on Saturday, and some time in the evening her body was found in the brake, as shown on the map, about 2½ or 3 miles west or northwest of Blum. When found, she was lying on her back, in a little open space, surrounded by cedars, about 200 yards from the nearest road. Some bushes intervened between where she was lying and the road. It is possible, however, that one might be seen lying as she was, from the road. She was lying on her back, the ground at that point being slightly inclined, and her head a little down, her feet about 10 inches apart, her hands lying by her side, her dress apparently orderly arranged, a bullet hole through her head. It had penetrated about an inch above the right ear, and had come out near the top of the skull. The hole indicated that it was a 44 or 45 caliber bullet which inflicted the wound. About 15 steps west of her body was discovered the place where the horse had evidently been hitched, and rather north, about 15 or 20 feet, her satchel, gloves, and hat were found. The satchel was open, and some papers scattered around. Also, in that same vicinity, her husband's coat, which she had carried with her, was found lying on the ground. The bottle of whisky was not found. The pistol was found on her body, the breech lying on and across her right thigh, and the muzzle on her left thigh, or between her legs. The pistol was a 45 caliber, and belonged to her husband, though it is not shown how or when she procured it. The cylinders contained four loaded cartridges. One chamber was entirely empty, and one contained an empty shell. There was some proof tending to show that this chamber had been recently fired. Under her head and right shoulder was a large pool of blood. Around the wound in her head there was blood, and the wound itself was shown to be powder burned, and also her right ear. One witness also states that he saw a spatter of blood on her right hand. The state's testimony tends to show that the tracks of a man and woman were found within 15 or 20 steps of the body. Two or three days after the discovery of the body, tracks of a barefooted horse were traced from the body in a northerly direction, to the pasture fence; thence across the fence, in a zigzag course, through the brush in the pasture, until they entered the lane, being the Cleburne and Kimball road, at a point east of the body. These tracks were found going and coming, and the testimony for the state tended to show that they were the tracks of the defendant's dun mare, which he was shown to have ridden on that day. The state's theory was that deceased was shot between 3 and 4 o'clock on that Friday evening, and that appellant was the guilty party. About 2 o'clock Mrs. Mattie Bomar saw defendant watering his horse in the branch about 100 yards southeast of the body, near the road. She passed him at this point, and went on, and continued traveling south. He shortly followed on, passed through the open glade just below the brake where the body was found, and then turned in a southeast direction, going towards Blum. Dr. Hanks testified that he met defendant, by appointment, on that day on the Blum and Kimball road, 50 or 75 yards from the old tall house, as shown on the map. He states this to have been about 2 o'clock. He asked defendant to deliver a message for him to the Stanley boys, concerning a contract. Defendant said he could not do it in the next two or three hours, as he had an appointment with Mrs. Jenkins, but after that he would deliver the message. He did not say where he was to meet Mrs. Jenkins, but left, going in the direction of Blum. The witness Walter Wheeler saw defendant at the crossing of the Belknap, some time later in the evening. As heretofore stated, when he first saw him, appellant was below the crossing, coming up the bank, leading his horse. He came up, and joined witness, and rode with him about 25 yards. Witness rode on due west, but observed defendant for half a mile, going in the direction of the old high-top house, which is towards the brake where the body was found. Appellant left him in a lope, and witness also saw another party ahead of defendant, who was also riding in a lope. It will be observed that this witness did not identify defendant, but stated that he was riding a dun horse. (The defendant, however, in his testimony admits that he was the party.) A witness states that he passed along the road within 200 yards of where the body was found, between 3 and 4 o'clock, and heard a shot fired in that direction, which must have been the shot which killed deceased. Defendant was seen again by Mrs. Raines, who lived about three-fourths of a mile east of where the body was found, at 4:20 o'clock by her timepiece, which she said was a little fast. He stayed all night with Tom Bigham's, who lived about three miles from Blum, and a short distance from the Raines place. He came there about a half hour before sundown, riding a yellow mare, and having a Winchester gun with him. He also had a flat quart bottle about two-thirds full of whisky.

As stated before, the motive for the killing...