Burgess v. State

• Decision Date: 17 November 1915
• Docket Number: (No. 3755.)
• Citation: 181 S.W. 465
• Parties: BURGESS v. STATE.
• Court: Texas Court of Criminal Appeals

181 S.W. 465

BURGESS v. STATE.

(No. 3755.)

Court of Criminal Appeals of Texas.

November 17, 1915.

On Motion for Rehearing, January 12, 1916.

Appeal from District Court, Jefferson County; John M. Conley, Judge.

R. H. Burgess was convicted of murder, the death penalty being assessed, and he appeals. Affirmed.

C. W. Howth, Crockett Williams, J. W. O'Neal, and Samuel C. Lipscomb, all of Beaumont, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder of his wife, and assessed the death penalty.

But a brief statement of the case is necessary. The material facts were proven by uncontroverted testimony of various witnesses.

Appellant was a drinking man, and had been for some years. His business was that of a traveling tailor, taking orders for men's ready-made clothing. He became acquainted with his wife while boarding with her parents, and after only a short acquaintance they married about six years before he killed her. After marrying, they left her parents' and lived from time to time at first one place and then another. They kept house during their whole married life but a very short time. It seems, because of his traveling, they boarded generally when living together. Because of his cruel treatment of his wife, she repeatedly abandoned him and went to and stayed with her parents. She had one child, a little girl, born just nine months after their marriage. She was about five years of age at the time her mother was killed. At one time his wife (deceased) procured a divorce from him, evidently because of his cruel treatment of her. Repeatedly, when she would abandon him because of his treatment of her, he would follow her up and by promises of future good treatment would induce her to return to and live with him for a while. And he repeatedly, after she had procured the divorce from him, besought her to marry him again, and by his promises induced her to remarry him, which she did about the 1st of October prior to the time he killed her the latter part of the following January. Soon after their remarriage, his cruel treatment of her was renewed. It became so unbearable that she again abandoned him and brought a second suit against him for divorce. This was pending at the time he killed her. After this separation, he again sought a reconciliation with her from time to time, and for that purpose, it seems, he repeatedly sought to meet her at various places, and perhaps succeeded in one or two instances; but she persistently refused to again live with him, and she and her little daughter lived with her parents at the time he killed her. Her father at the time was a paralytic, confined to his bed, and utterly helpless. The deceased was in the habit of arising early in the morning and preparing an early breakfast for her brother, so that he could early go to his work, and after he would complete his breakfast she would then prepare breakfast for the others. She was killed early one morning.

Her mother, Mrs. W. T. Rigsby, testified that she had more than one time heard him threaten to kill his wife. She testified:

"That he threatened to kill her in October, the first of October, 1914, upstairs in their room. * * * That Mr. Burgess said: `I could kick you half to death. I would love to kick you to death, and then hang for it. I don't mind being hung. What is death to me? I don't care. That that was the last time she heard him threaten to take her life before the morning he killed her, because that was the last time that he was in the house."

She further testified:

"That her daughter's (deceased's) bedroom adjoined her bedroom on one side, and the dining room just around the corner. That her attention was attracted, on the morning of the killing by hearing Mr. Burgess's voice muttering, and her daughter begging him not to kill her. That she could tell that her daughter was in the kitchen, and she said: `Oh, Mr. Burgess, don't do that; don't shoot me; please don't kill me.' That, when she heard that, she opened the door leading from that room to the dining room and saw him. * * * That when she opened the door she saw Mr. R. H. Burgess and her daughter. That her daughter was nearer to her, and was just coming from the kitchen to the dining room backing up, and Burgess was following her. * * * That he had a pistol in his hand and was pointing it at May Burgess (deceased). That, when she opened the door, she said: `Oh! My Lord! what is the matter?' And that Burgess replied, `It's me.' That she saw the first shot, and that her daughter did not have her back to him then, but was facing him. That the first shot struck her daughter somewhere in the bowels. That, when the first shot was fired, May Burgess did not have hold of anything. That, when she was shot the first time, she begged him after that and kept trying to go to her father's room. That it was about 1½ or 2 yards from the place where she was shot the first time to the place where she was shot the second time, and it was about 2 steps further to where she was shot the third time. That at the time her daughter received the third shot she had her back to him (appellant) and was trying to get to her father's door, and was right at it. That before she was shot the third time she said: `Oh! Mr. Burgess, you have killed me. Don't shoot me any more. Please don't kill me for my baby's sake.' That Burgess said: `No, you are not killed. I will kill you' — and laughed, and then shot her again in the back."

She further testified that just after shooting his wife appellant left, went out the kitchen door, around the house, out into the street, going away from the scene. That at once after appellant left her daughter (deceased) said to her: "Oh, Mamma! Mr. Burgess has killed me. Pray for me. I want you and papa to pray for me." And she said: "Oh, Papa! I know you would help me if you could." And she further testified that deceased then told her that the wind was blowing, and she (deceased) closed the door, and she turned to put up her dishes, and he (appellant) opened the door; that she turned around, and he had his hand behind him, and he said, "You won't live with me?" that she said: "I have tried so many times, and you have promised me if I would try you one more time you would (not) treat me so cruelly, you would not worry me no more, and you promised you would pay for my divorce;" that she said: "Don't do that, Mr. Burgess," and he commenced pointing a pistol at her, saying the second time, "You won't live with me?" and she said, "No, I cannot live with you."

At most, the evidence, without reciting it, barely suggested that appellant, at the time of the killing, possibly might have been insane from the long use of intoxicating liquor, but there was no positive testimony that he was insane from that cause, or any other, at the time he killed his wife. The bare suggestion of insanity might be inferred solely from the fact that he had been a drinking man and a few isolated acts of his occurring long before the killing. However, the court charged in his favor on insanity in a correct charge, telling the jury in effect that, if they believed from the evidence he was insane at the time of the killing, to acquit him, and state in their verdict that they did so on that ground. No exception was taken to the court's charge. Appellant requested one special charge to the effect that, if at the time of committing the offense he had become insane from the long continued and recent use of intoxicating liquor, or from some other cause, to acquit him. We think the court committed no error in refusing this charge in view of the charge of the court. For by the court's charge they were plainly told that if they believed he was insane to acquit him, which would embrace insanity for any cause whatsoever. No doubt, under the court's charge, if the jury had believed that he was insane from the use of intoxicating liquor or from any other cause, they would unquestionably have acquitted him.

Appellant's next complaint is to the action of the court in permitting the bloody clothes of the deceased to be exhibited before the jury. Dr. Gober was the first witness for the state, and he testified to the location of the wounds upon the body of the deceased, and for that purpose he alone was permitted to adjust deceased's garments to his body so as to show the exact location of the wounds, and the court so states in his qualification of appellant's bill, and further that it was admitted for that purpose. There is no intimation in the bill, or otherwise in the record herein, that the bloody garments were made use of by the state in any argument to the jury whatever, or otherwise than the mere fact, as stated by the court, of identifying thereby the wounds inflicted by appellant upon the deceased. Even the doctors themselves differed as to whether some of the wounds entered from the front or rear of the body. From the state's viewpoint, the clothes were admissible, and we think, under the authorities, no error is presented on this question that would authorize this court to reverse the case. Branch's Crim. Law, § 436.

In his next bill, he claims the court erred in admitting the dying declaration of the deceased on two grounds: (1) Because it was not signed, nor did it purport to be signed, by the deceased; (2) that it was not voluntary, but made in response to solicitations propounded to her. We have carefully considered the evidence on this point, and, in our opinion, the proof is clear, forcible, and amply sufficient under the statute (article 808, C. C. P.) to not only authorize, but to require, the admission of said statement in evidence. See Judge White's sections under said statute for a collation of some of the authorities. The judge in his qualification to this bill states that the witness Synnott testified:

"The deceased was in a weakened condition, and that he signed her name to the written statement, and she touched...