Cordes v. State

• Decision Date: 17 June 1908
• Citation: 112 S.W. 943
• Court: Texas Court of Criminal Appeals
• Parties: CORDES v. STATE.

112 S.W. 943

CORDES v. STATE.

Court of Criminal Appeals of Texas.

June 17, 1908.

Rehearing Denied October 21, 1908.

Appeal from District Court, Gonzales County; M. Kennon, Judge.

Annie Cordes was convicted of murder, and she appeals. Affirmed.

Rainbolt & Blanton, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted for the murder of her child, and upon conviction her punishment was assessed at imprisonment for life.

The facts, in substance, show that appellant and her brother, Eilert Cordes, lived upon a farm in Gonzales county, occupying alone their home. In August, 1906, Eilert secured the services of several negroes to assist in picking cotton. These negroes lived in a house 20 or 30 yards from the home while engaged in picking cotton. One negro, Johnnie Hamilton, testified that he slept in the kitchen by the cooking stove in the same house and in an adjoining room to appellant. "That night I heard a baby cry in the night, and heard them walking around in the house. I don't think I heard it cry but once that night before I went to sleep. I got up the next morning before sun-up, and heard it crying in the house next morning. It sounded like it was in the room from me adjoining the kitchen. I don't know who lived in there. I couldn't say what room they stayed in. Nobody else lived in that house but these people. It was about between 6 and 7 o'clock in the morning when I heard the baby cry. I saw Mr. Cordes around the house that morning, and I saw him afterwards during the day when he passed me going down towards the creek. He had a bundle under his arm that looked like a croker sack or saddle blanket balled up under his arm; but I couldn't say what it was. When he came back from the creek he had nothing with him. I never heard the baby cry after he carried the bundle off. I stayed there Tuesday, Wednesday, and Thursday, and went to town Friday evening and heard that the baby had been found Saturday night of the same week." A baby was found in the creek, which was some 300 or 400 yards from appellant's home.

Dr. Finny Blackwell, in reference to finding the child, testified as follows: "I visited the water hole about 200 or 300 yards away from the house of the defendant about the 10th or 11th of August of last year, and then went with Mr. Johnson, the sheriff, on that night to Cordes' house. At the water hole I found something covered up in a gunny sack and blanket, very badly decomposed. I came to the place, and found Mr. Pittman and another gentleman there, and stayed on the bank and waited for the justice of the peace and Mr. Johnson; and they didn't come, and I picked the gunny sack up, and unwrapped the blanket, and found a little girl baby, and I examined it and went over it very thoroughly. The body was very much decomposed. The head had been fractured, and the ribs had been broken or fractured. The brains were gone, and the membranes were intact. It was either the third and fourth or the fourth and fifth ribs that was fractured. In addition the child had a string tied around its neck three times and tight as tight could be, and the back and shoulders of the child were badly decomposed. I prized the ribs open, and got hold of the lung and opened it and extracted the lung, and introduced two fingers, and pulled out a part of the lung tissue, and when I pushed around in it air and water escaped. That air might have come from two or three places. It might have been caused from putrefaction, and it might have been caused from natural prevailing conditions. The color of the lung tissue differed. It was light in places, but where it was badly decomposed it was of a brown hue; but I could not say positively just what the color was, looking at it with my naked eye and from a scientific standpoint. I could not say whether the air had been breathed in there or whether it was the result of putrefaction. The child was well developed and would have weighed about eight or nine pounds. For a living child to have its brains knocked out would kill it sure. The wounds in the side, untreated, I think would have killed it. I don't think it would have produced immediate death. The string tied three times around its neck would have killed it. A living child would live a very few minutes with that string around its neck. A still-born child would have a flat chest and the diaphragm would be way up. In a child that had lived you would find air in its lungs that could not be expelled. If it had been completely submerged for four or five days, it would not have decomposed that fast. From my examination of the body and the appearance of the lung tissue I could not state whether that child had ever lived or not. I can state that you would have found these conditions in a child that had breathed, but I must state that results of putrefaction would produce the same results. A child by the act of breathing produces a rounded condition of the chest, and this child's chest was rounded. The lungs were extended. Its abdomen was swollen, and the skin around its neck had broken where the string was tied, and it was decomposed all over. Any part of that child would float. As a medical expert I cannot say whether or not that child lived. I can state that the air and extension of that lung would indicate that the child had breathed; but at the same time I believe the results of decomposition in that side would produce the distension just the same. The child's breast was round and distended and the diaphragm was down."

The child had been taken out of the water upon which it was floating a short while before the doctor reached the scene. Johnnie Hamilton swore it was 2 or 3 o'clock in the evening on Monday that he saw Cordes go down to the creek with a bundle under his arm. The negroes who lived in the house on the farm testified that appellant was sick at the time that Johnnie Hamilton says he heard the baby cry, and was sick for several days. Various witnesses testify that appellant appeared to be pregnant a short while before the child was found, and at that time did not show any signs of pregnancy. The doctor who examined appellant after she was placed in jail testified that everything indicated that she had given birth to a child a short while before the examination, some seven or eight days. The testimony shows that this will correspond with the date that Hamilton says he heard the baby cry. The sheriff testifies to taking a sack and blanket and a string that were found around the baby's neck and comparing them with blankets and cloth found in the home of appellant, and they corresponded in texture and color with said blanket and cloth so found. He says the blanket he took from around the child was dirty and bloody, and, after washing it, it was of a lighter color than the blanket found in the house, but in texture and other respects corresponded. The figures on the cloth string around the baby's neck corresponded with the figures on the cloth in the home. The sheriff, through an interpreter, asked appellant if she had given birth to a child prior to her arrest. She denied it. Several bloody clothes and garments were found in the house, indicative of child-birth. This, in substance, as we glean from the statement of facts, is the testimony.

Appellant complains the court erred in refusing to give the following charge: "In this case you are instructed that, unless you find from a preponderance of the evidence that the child with whose murder the defendant is charged had a complete and independent existence from its mother and was wholly born alive, then you must acquit the defendant. In this connection you are further charged that the testimony of the physicians in this case is not sufficient to show that said child was wholly born alive and had a complete and independent existence from its mother, and unless you further believe that the testimony of the witness Johnny Hamilton is true you will acquit the defendant." The first clause of the charge was given by the court in his main charge. The second clause is a charge upon the weight of evidence, and should not have been given.

Appellant further complains of the refusal of the court to give the following charge: "In this case you are charged that there is not sufficient testimony in this case to convict the defendant unless you believe, in connection with the other testimony in the case, that the testimony of the witness Johnny Hamilton, to the effect that he heard the child cry, is true; and unless you so believe this portion of the testimony of the witness Johnny Hamilton to be true you will acquit the defendant." It is never required or proper for a court to single out testimony and charge upon same, as suggested in appellant's special charge.

Bill of exceptions No. 1 complains of the following: The state proved by the witness Neighbors, over objection of appellant, that a short time previous to the finding of the body of the dead child in the water hole...