Aleck Brown was convicted of murder in the first degree, and appeals. Affirmed.
The following is the statement of facts:
J. F. Nash, witness for the state, being duly sworn, testified as follows: "I hold the position of marshal of the town of Bastrop. I heard of the killing of Jane Wilkins, who was Oliver Wilkins' wife, on the night of October 15, 1892. It occurred in the town and county of Bastrop, in the state of Texas. It was some time about ten o'clock when I heard of it. When I got there I found the body laying in the yard, between the two doors on the south side of the house. It was lying on the face, with the hands under it. There were two deep gashes in the head, and one in the shoulder. There was an ax lying beside the body, and covered with blood. There was blood on the ground around the body, and blood on the wall of the house near the body, as high as five feet from the ground. There was also a bloody ax lying on the ground, near the body. Ben Holiday lives in the south west corner of the block on which the Wilkins house is situated. Darcas Gage lives on the northeast corner, and the Wilkins house is on the northwest corner. Ann Morrison and her husband, Frank Morrison, live across the street from Oliver Wilkins, — directly north. I think the street is about fifteen feet wide, and Morrison's house is some ten feet from the street. Oliver Wilkins' house faces south. It is about sixty or seventy yards from deceased's house to Ben Holiday's. It is about seventy-five to one hundred yards to John Kerr's from Oliver Wilkins' house. There was some blood on a top plank of Wilkins' yard fence, south of the gate, made by finger prints. The finger prints, in blood, were about two inches below the top edge of the plank, and the plank was broken. Aleck Brown, the defendant, was arrested some time in the summer before the killing occurred, for disturbing the peace; and he pleaded guilty, and paid part of his fine, and worked the rest out on the street. He was charged with disturbing the peace." Cross-examined: "Oliver Wilkins, the husband of Jane Wilkins, the deceased, made the complaint against Aleck Brown for disturbing the peace. The body of Jane Wilkins was found on the south side of the house, a few feet from the door of the main room, nearest the door of the east room. This east room is an old room, not used much. There was nothing in it. The feet were directly under the eaves of the house. The head was directly south, as though she had been standing with her back to the wall. I don't think it was over five minutes after I heard of the killing until I got there. There were a good many there when I got there. Aleck Brown, John Kerr, Ben Holiday, and Aunt Darcas Gage were there when I got there. Aleck Brown went after Oliver Wilkins, the husband of the deceased. I think he went after him of his own accord. When Oliver got there, I noticed him, and he seemed very much excited. He went and got his gun, and went out in the garden. Aleck
Brown lives 200 yards or more from Wilkins' house, — a little west of south of Wilkins' house. The blocks are divided into squares of three-acre tracts. Oliver Wilkins' house, where deceased was killed, is in the northwest corner of one three-acre block, and Darcas Gage's house is near the southeast corner of the same block, and about 45 yards distant. Frank Morrison's house, where Ann Morrison lives, is on the block immediately north of Oliver Wilkins'; and Ben Holiday's house is on the same block the Wilkins house is on, and in the same southwest corner. Dally Nunn's house is on the same block with Frank Morrison's house, and in the northeast corner of same. Kerr's house is a little south of east from Wilkins' house, and between 75 and 100 yards distant. Aleck Brown's house is a little west of south from Oliver Wilkins' house, and about 200 yards distant. In going the most direct route from Oliver Wilkins' house to defendant's, you would pass by the Ben Holiday house. In going from the Ben Holiday house to the Taylor house, in the most direct route, you would pass by Oliver Wilkins' house. Maria Gage lives about one-quarter of a mile from Ben Holiday's house,—a little east of north. These three-acre blocks are surrounded by streets. Ben Holiday's house is the only one you would necessarily pass in going from Oliver Wilkins' to defendant's by the most direct route. Immediately north of defendant's house is an inclosed three-acre block, with no houses or improvements on it."
The following is a correct plat of the grounds and houses, and was introduced in evidence by the state:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Darcas Gage, for the state, being sworn, testified as follows:
"I am the mother of Jane Wilkins, the deceased. The first time I knew Jane was dead, Ann Morrison came to my house, and called me, and said, `I think one has killed or hurt Jane.' I went up there, and found her lying on the ground, with her head cut open, and a bloody ax lying near her. I screamed, and kept a-screaming. No one came, and I went back, and put on my clothes. When I came back, John Kerr came. His nephew, Walter Wheeler, came with him, and shortly afterwards Aleck Brown came, and he stooped over Jane, and said: `Yes; sure enough, she is dead.' Aleck said to John Kerr, `Let's put her in the house.' Kerr said, `No.' Aleck walked off, put his elbows on the fence, and leaned his head on his hands. I said, `Who will go after Oliver Wilkins?' and Aleck said `I'll go.' Before cotton-picking time, Aleck and Jane had trouble, fussing and quarreling. Aleck was frequently at Oliver Wilkins', both in the day and at night, while Oliver was absent, and no one at home." Cross-examined, witness testified: "Ann Morris called me three times. I was asleep when Ann called me. When Oliver came up, he said, `There is my poor wife.' After Ann Morrison called me, I went right up, in my night linen. I put my hands on her head, and I thought she said, `Ma.' The body was still warm. I screamed, and kept hollowing, `Some one has killed my poor child!' I went back, and dressed. I don't think it took me fifteen minutes. I went just as quick as I could. Jane Wilkins married Tobe Cook's father the first year of freedom. Aleck Brown was then only a baby." Re-examined by the state, Darcas Gage testified: "About four months before the death of deceased, the defendant and deceased were at Oliver Wilkins' house, quarreling, and I went to them, and tried to stop it, and defendant started off, and then stopped, and picked up a big stick of wood, and threw at deceased, and hit the fence; and I said, — `Aleck, I am going to make your pocket blue for that;' and he said, `God damn you! I will make your heart bleed in less than six months,' and then left. Oliver Wilkins' family consisted of only himself and wife, and a little five or six year old boy, and no one lived at his place except this family."
J. F. Nash recalled for the state testified: He arrested the defendant on this charge on the night of the murder. Very shortly after witness "got to Wilkins', being shortly after ten o'clock, he had on no hat or coat or overshirt, and only a clean undershirt on the upper portion of his body. The sleeves he had on when arrested had some spots of blood on them at the time he was arrested. I went that night to defendant's house, and found a white straw hat and a pair of pants of defendant's, both of which had some spots of fresh blood on them; but I did not notice the blood on the hat and pants of defendant until the next morning, but noticed it on the shoes that night. The blood on the hat was a small spot on the under side of the brim, and a large spot on the band, and there were large spots on his shoes. The blood has faded away some, but I can see it on the hat and pants and shoes now. The deceased had been struck three times in the head, and once in the shoulder, with the ax, or some sharp, cutting instrument. The wounds were all deep ones, and the head was cut to pieces, and had to be tied up for burial." Cross-examined, the witness J. F. Nash testified: "The blood is plainer
now on the hat band than it is now on the shoes and pants. When I first saw it, it was red, and looked like fresh blood. I could not tell the difference between blood put on the clothes at 10 A. M. and 7 P. M."
John Kerr, for the state, being sworn, testified: "I live a little distance from the house of Jane Wilkins, the deceased. About ten o'clock on the night Jane Wilkins was killed, I heard Aunt Darcas, the mother of deceased, screaming. I ran up there. When I got there, there was no one there but Jane's mother. The deceased was lying in a pool of blood, dead, and a bloody ax was lying near her. Her head was cut all to pieces with the ax, and I joined the pieces of her head together with my hands, and there was nothing holding together but a piece of skin. Aleck Brown was the fourth man there. Darcas asked Aleck to go and get Oliver. When Oliver got there, he walked around the yard, wringing his hands, and said to defendant, `Aleck, you have killed my wife,' and defendant made no reply, and walked off. When Aleck Brown came, he said, `What's the matter?' It was ten o'clock, by my clock, when I left home. When I got there, about three minutes afterwards, I heard Darcas scream." Re-examined: "The defendant had no hat on his head there that night, and he was the only person there I saw without a hat on his head. I was there the whole time defendant was there that night, and he never inquired anything about who committed the murder, or who was suspected with it."
Oliver Wilkins, being sworn for the state, testified: "I am the husband of Jane Wilkins, the deceased. I last saw her alive on October 15, 1892, about four o'clock in the afternoon. From sundown until Aleck Brown...
