Brown v. State

• Decision Date: 28 May 1913
• Docket Number: (No. 2014.)
• Citation: Brown v. State, 169 S.W. 437, 74 Tex.Cr.R. 356 (Tex. Crim. App. 1913)
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 437

BROWN v. STATE.

(No. 2014.)

Court of Criminal Appeals of Texas.

May 28, 1913.

Rehearing Denied June 25, 1913.

Order Overruling Motion for Rehearing Set Aside June 27, 1913.

On Motion for Rehearing, June 3, 1914.

Dissenting Opinion September 8, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Runnels County; J. W. Goodwin, Judge.

George Brown was convicted of uxorcide, and he appeals. Affirmed.

W. F. Ramsey and C. L. Black, both of Austin, T. C. Wilkinson and Scott & Foster, all of Brownwood, P. M. Faver, of San Saba, Snodgrass & Dibrell, of Coleman, and John I. Guion, of Ballinger, for appellant. R. L. McGaugh, Co. Atty., of Brownwood, H. ZDaril, of Taylor, W. U. Early, of Brownwood, Stone & Wade, of Ballinger, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted, charged with the murder of his wife, convicted of murder in the first degree, and his punishment assessed at imprisonment for life. The offense was alleged to have been committed in Brown county, but was tried in Runnels county on a change of venue. Appellant had been married prior to his marriage to Mrs. Sallie Brown, the woman whom he is alleged to have killed, and had a number of children by his first wife. Mrs. Sallie Brown had also been married prior to her marriage to appellant, and also had children by her former husband. Appellant and his wife were married January 4, 1910. Appellant and his wife were living on a farm about 6½ miles from Brownwood, when in November, 1910, she left the farm and moved to Brownwood, remaining there until in March, 1911, when she returned to the farm, the homicide occurring at the farm on September 9, 1911. All the children had gone to town to a show except the three little ones, who will hereafter be referred to. About 10 o'clock that night Mr. Ivy Beeman says appellant called him over the telephone, and said:

"Mr. Beeman, I wish you would come down here quick, a burglar has knocked me and my wife in the head and tried to kill us both."

The witness says he replied, "All right," and began to dress, but before he got ready to go appellant called him again and said:

"I wish you would come quick, my wife is hurt bad, and I am afraid she will die before you get here; there is blood all over everything, and I wish you would come quick."

He then details in what condition he found Mrs. Brown, the defendant's statements at the time, etc., but, as we will quote extensively from the statement of Dr. Tottenham, the family physician of Mr. Brown, who states the matter more succinctly, we will not recite Mr. Beeman's testimony. Dr. Tottenham testified he was called that night and went immediately, and then testifies:

"I came in and spoke to Mr. Brown, and Mr. Beeman and said, `Good evening,' or something of that kind, and Mr. Brown made an exclamation, `My God!' or something of that kind, `Isn't this awful?' I think I said, `Good evening,' to him, and he says, `My God, isn't this horrible or awful?' or something to that effect, and I says, `It certainly is; how did it happen?' and he proceeded to tell me then; he told me that he had been taking some medicine and had been up with his bowels once or twice, and wasn't sleeping sound, and that he was lying on the inside of the bed and his wife was on the outside, and he said he wasn't sleeping sound, just kinder dozing, and indicated to me how he was lying on his right side facing his wife, and had his eyes shut, and he said he heard something tip up on the gallery, and `I thought it was a dog,' and he says, `Then I heard the lick,' and says, `I opened my eyes and looked up and I saw a man drawn back,' and he indicated to me then with his arm; he was standing up at that time; he was standing between the bed and the wall near the head of the bed, and said he was lying on his right side facing his wife, and he says, `I heard some one tip up on the gallery, and I thought it was a dog, and then I heard the lick,' and he says, `I opened my eyes and looked up'; when he was telling me this I was standing at the head of the bed, and he was in this position; he was talking and standing about like you are now, and I was standing at the head of the bed, and he was between the bed and the wall; he said, `I heard something come up on the porch,' and he was looking this way when he made this statement, and says, `I thought it was a dog'; he was looking towards this southeast step, the same step I entered from; he didn't do anything else with reference to indicating that step except looking that way and facing that way when he was talking; he said he thought it was a dog, and then he heard the lick, and he wasn't sleeping sound, he was dozing, and says, `I looked up,' and he indicated on his arm a distance of about 18 or 20 inches something that he said the man had raised up; he was still standing near the head of the bed near this window, and he says he looked up and saw him drawing back to hit him, and says, `I ducked, and as I ducked I felt the wind as it passed my head,' and he turned then and pointed to the wall opposite the bed to the right of me and says, `See there,' and pointed to the wall right along here; he was standing close to this window, right about here; he turned around and pointed to the wall and says, `See there where he like to have killed me or tried to kill me; that is where he hit the wall.' I saw the indentation on the wall then, and I still stood at the head of the bed. I says, `What did you do then, Mr. Brown?' He says, `I jumped up and ran between the bed and the wall into this room, the north room, to get my gun,' and as he ran, he says, he used an oath and said that he would kill him, or something to that effect; he says, `You son of a bitch I will kill you,' and started after his gun; he said as he entered this door he was afraid the man would follow him and he closed this door, and as he looked over his shoulder his pants was on this chair at the foot of the bed with four dollars and something in his pants, and a Woodman receipt and a $5 pearl-handled pocketknife, and says, `He grabbed my pants and run.' He says `You will find the pants somewhere where he throwed them down, he won't carry them far'; I says, `What did you do then?' He says, `I got my gun from the closet as quick as I could and the shells from over the closet and came back out here.' I says, `Did you see the man?' He says, `No.' I says, `Did you run after him?' He says, `No; I went to my wife.' I says, `What was your wife doing then?' He says, `She was sitting on the edge of the bed.' I says, `Did she holler?' He says, `No; she said her head hurt her.' I changed my position then to this side of the bed, and he was still standing in his same position over by this window of the middle room, near the edge of the bed; I went around then between the edge of the bed and the gallery, and I noticed that there was water on the floor; I says, `What caused this water; how is this water here?' and he says, `She vomited, and I washed it up'; he didn't say what she vomited. He says, `I found the iron that he hit her with,' and he pointed down to the gallery post, right opposite here and just back of the gallery post on the ground, and there was a bar of bridge iron laying there; he says, `It is a piece of railroad iron, a piece of bridge iron.' I looked down through the vines there, and I saw this piece of iron laying in the front yard in front of the gallery; I didn't disturb the body at all, I saw that nothing could be done for her — didn't think she would live more than an hour or two; I told him to start a fire and get some hot water, and he went off to start the fire, and he brought me some cold water, and then he went off to start the fire and get some hot water, and in the meantime I believe the officer had come; I made an examination of that iron when he handed it to me; I think I saw that iron after Mr. Daniels came; I didn't bother anything until Mr. Daniels came; when I got there I found the deceased lying on the outer edge of the bed, lying up on a pillow; she was lying on the east side of the bed, and her head was lying a little to the outer edge of the pillow and her face turned a little towards the wall, and she was lying on her back; she was dead to all appearances, and you couldn't see any respiration at all, you couldn't see her breathing at all; her pulse was scarcely perceptible, and you couldn't hardly feel it, it was so weak; after the officer came I examined her head, and there was a mass of brain just beat into a jelly protruding over the right eye, just sticking right down here, and I removed that protruding mass of brain and some fragments of skull that was easily gotten to; I didn't go deep into this fracture, this large opening here, and I placed the skin flaps over this opening and put on aseptic dressing, and then examined the other side, and over the left eye; about an inch or an inch and a half from the wound over the right eye was a horizontal fracture an inch or an inch and a quarter long that could be plainly felt and seen through the skull; you could see the fracture plain over the left eye; by fracture I mean that the skull was broken; that fracture over the left eye was about an inch or an inch and a quarter in length; over the right eye I found that there was a fracture about an inch and a half or two inches square, and the process over the right eye was broken in; that was the superorbital process; that superorbital process runs backward under the brain and between the eye and the brain and the optic nerve; I suppose that runs back an inch and a half; that superorbital process is composed of bone, but it is not very thick there; right in front of that superorbital process is the thick portion of the skull; the nasal bone was broken in, but I made no examination further than that; I didn't make any further examination at that time because I didn't think it was necessary, I didn't think anything could...