Fisher v. State

• Decision Date: 02 December 1891
• Citation: 18 S.W. 90
• Parties: FISHER v. STATE.
• Court: Texas Court of Appeals

18 S.W. 90

FISHER v. STATE.

Court of Appeals of Texas.

December 2, 1891.

Appeal from district court, Delta county; E. W. TERHUNE, Judge.

Indictment of Jim Fisher for murder. Verdict and judgment of conviction. Defendant appeals. Affirmed.

Howard Templeton and Richard H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of the murder of Austin Hardy on July 5, 1891, and the jury assessed against him the death penalty. There was an application for a continuance made by appellant for the testimony of several witnesses who were alleged to be absent. They were five in number. Two of these — Dr. Becton and Brownlow Coston — testified on the trial, and another, Mrs. Patterson, was tendered to and excused by appellant. The remaining two—Mrs. Hollon and Charles Green — did not attend. Green was a stranger to defendant, and never met him until during the month of September subsequent to the homicide; was in jail a short time with him; was discharged therefrom, and has disappeared from the country. It may be further stated of this witness that he was a stranger, transiently in the county of the homicide, and while there was arrested for felony, placed in jail with the defendant, and was discharged shortly thereafter, and upon his discharge from custody disappeared, and the officers have been unable to ascertain his whereabouts since that time. The facts expected to be proved by him are alleged to extend over a space of time both prior and subsequent to the date of the homicide. It is clear that the court did not err in overruling the application as to this witness. By all of these witnesses except Dr. Becton appellant expected to prove "that they have known defendant for some time, and that before and since the 5th day of July, 1891, they have seen defendant act and talk like an insane person; that frequently at night and in day-time defendant did in the presence of said witnesses suddenly get up, fight at, and run from some imaginary danger, and afterwards would cool down and become calm, and at times morose; that said witnesses will testify that defendant was regarded by them, from said acts and declarations, as of unsound mind." The evidence shows beyond dispute, and was not controverted by the state, that defendant was a somnambulist, and would make noises in his sleep, "get up," and move about in his sleep, and do such other things as that character of persons do under similar circumstances. It is also equally established that "somnambulism is not insanity," and "it is not an indication of insanity." It was upon this state of case that Mrs. Hollon was expected to testify that she believed defendant to be insane. Had she so stated, it is not probable that the jury would have believed her conclusion and opinion to be correct in the face of the other testimony to the effect that somnambulism is not a symptom or evidence of insanity. The court properly overruled the application for a continuance.

Appellant's second contention is the insufficiency of the evidence to support the verdict of the jury. The undisputed evidence is that defendant and deceased were brothers-in-law; that the defendant had lived with deceased for some months prior to the homicide, at least most of the time during said months; and that the homicide occurred on July 5, 1891, on the premises of the deceased, in a corn-field. The facts show a cold-blooded and heartless killing, and these facts are also undisputed, unless the defendant was insane at the time of the homicide. The only defense set up or attempted to be proved on the trial was an effort to establish the insanity of the defendant. This was really the only contested issue before the jury. No evidence offered by the defendant upon the issue was excluded. It was all admitted as offered. The theory of insanity was based upon the statements of defendant, prior and subsequent to the killing, that the deceased had been having illicit intercourse with his own daughter, a child less than 10 years of age, and who was a niece of the defendant.

A recapitulation of the salient features of this evidence should be stated in order to understand the case. About two months before the homicide defendant went to Mrs. Hardy, and desired to impart to her a secret. She declined to hear it, and informed her brother that she was "a poor hand" to keep secrets. He insisted however, that she should hear it, and should promise not to tell it to any one. Finally she agreed, and heard his story. She thus testified: "He told me that he had tried to have improper intercourse with my daughter, and could have done so, but that he quit, and did not. That my husband, Mr. Hardy, had been keeping her. I said to him, `Jim, you must be crazy.' He replied that he was not as crazy as I was, and could prove what he had charged to me if I would give him a chance. I told him I did not believe it was true, so far as he was concerned, and I knew it was not true so far as Mr. Hardy was concerned. He told me Mr. Hardy treated Alma, who was my oldest daughter, better than the other children; and that he (defendant) heard strange noises at night; and if I would but look and listen I could hear and see the same thing. From these things he knew Mr. Hardy was criminally intimate with Alma. I knew it was not so, and did not tell Mr. Hardy, because I knew he would not take it, and it would cause trouble between him and my brother. Defendant mentioned this to me several times after that before the killing. * * * I never saw and never suspected anything wrong between Mr. Hardy and the child. After that defendant talked to me about this several times; in fact, every time he found me alone away from the house. * * * One day defendant came to me, and pretended to be terribly hurt, and I told him I would hear no more of it; and he got down on his knees, and cried a little about my refusing to hear him. I did not believe there was any truth in defendant's statement. Alma lacked ten days of being ten years old the day Mr. Hardy was killed. * * * Every time defendant talked to me about Mr. Hardy being too intimate with Alma he cautioned me to keep it secret. He said he had done no good talking to me, as I would not believe it, and he was liable to be murdered. He told me this after he had mentioned the matter to me several times, when I told him I was tired of it; I did not want to hear any more about it. I know Alma got into defendant's bed by finding her there next morning. She complained of being cold, and said she went to his bed on that account. After the killing she told me of defendant's attempted intimacy with her."

Alma Hardy testified: "I was ten years old July 15, 1891. Defendant is my uncle, and lived with us several months before he killed my father. * * * I never told defendant nor mother that my father had been too intimate with me, because he never was. * * * Defendant never said anything out of the way to me. Once we were in bed together. I went to his bed. He was not asleep. He always slept in the same room, and one of my little sisters slept with him, and a little brother with me; and father and mother slept in an adjoining room. The night in question my little brother was in uncle Jim's bed also. I don't know why I went to his bed. I remained in his bed all night. I never told mother about this until just before the first court after the killing." Just after the homicide, and before this witness knew of it, the defendant, on leaving the place of the killing, met her coming from a neighbor's, where she had been for milk, on her return home, in company with other girls, and asked her "to go down in the woods with him. He never said anything more to me until we left the other girls. He then asked me to say that my father had been too intimate with me. I told him I would not do so. He insisted that I should do so, but I refused. He asked me if I had not been too intimate with father, and I said `No.' He said he thought father had been too intimate with me. I said he had not. He urged upon me to admit it, but I refused, because it was not so. I don't know whether he was awake at the time I got into his bed or not. He was afterwards awake. Defendant pulled up my clothing with his hands, and put his hands upon my private parts, and took his private organ, and put it on me, against my private parts, and pushed a little. He held it there a short time. He never said a word." The conversation in which defendant...