Gay v. State

Decision Date30 January 1901
Citation60 S.W. 771
PartiesGAY v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Travis county; R. E. Brooks, Judge.

Gib Gay was convicted of murder in the first degree, and he appeals. Reversed.

T. H. Franklin and Will G. Barber, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is the second appeal in this case, appellant having heretofore been convicted in the district court of Hays county, and prosecuted an appeal to this court, the judgment having been reversed at the Austin term, 1899. 40 Tex. Cr. R. 242, 49 S. W. 612. Since that trial the venue has been changed to Travis county. On the trial appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life, and he prosecutes this appeal.

The testimony on this trial was substantially the same as on the former appeal, except in some respects the state failed to make as strong a case as it did before. The essential features of the case, as made by the state, in effect showed that Lindemann (the alleged deceased) and appellant became acquainted in Arizona, the home of Lindemann, and where appellant was temporarily living, engaged as a hired hand in the cattle business. Some time towards the last of June, 1897, appellant induced Lindemann to leave Arizona, and go with him to Hays county, where appellant's mother lived, for the purpose of engaging in the cattle business. They made a contract to purchase cattle together, Lindemann furnishing the money, something over $2,000, and the cattle were bought and placed in the pasture of appellant's mother, in Hays county, who lived some 15 miles from Buda or Kyle, the nearest point on the railroad. The cattle were to be bought in the country, and placed in the pasture and kept, and when sold the profits were to be divided between Lindemann and appellant. About the last of June some $2,100 was deposited by Lindemann and some $150 by appellant in the bank at Kyle. During July they bought about 100 head of cattle, and placed them in said pasture. On the 25th of July, Lindemann drew the balance of his money, some $527.34, from the bank, and at the same time appellant drew $150 from said bank. This was on Wednesday. They left Kyle together in a gig, and the last seen of Lindemann was on his way home with appellant, about 2 o'clock of that Wednesday evening. On Lindemann's disappearance, it is shown Gay claimed Lindemann's property, consisting of the cattle purchased, stating he had bought Lindemann's interest in the same. The state also introduced testimony tending to show that appellant had but very little money before the disappearance of Lindemann, and that he afterwards not only claimed to have bought the cattle from Lindemann, but that he had money to loan. The testimony tended to show he loaned some $400 or $500 to parties in that vicinity. The state also showed by testimony that appellant stated he carried Lindemann to Buda, Friday evening; that he and Lindemann stayed all night near Buda, in the woods, Friday night, and that appellant left him there, stating he would go up to the station and take the train; that he did not know where appellant was going, unless he was going down to Smithville or Red Rock, in Bastrop county, where they had bought cattle. Suspicion was aroused shortly after Lindemann's disappearance, and appellant was arrested by the sheriff of Hays county, and placed in jail. The grand jury which met in September failed to indict him, and he was released. In the early part of October following, search was made on the premises and pasture of appellant's mother, and in the woods, about half a mile from Mrs. Gay's house, in a rather secluded spot, evidences were found where there had been a fire, and about a bushel and a half of ashes were found in a space seven feet long and four feet broad, and the undergrowth was found to have been singed and burned immediately around the place. The ashes were taken and sifted, and about a tin cup full of bones, and buttons, brads, and a tuft of hair were found. These bones were identified by experts as those belonging to a human being. One of the bones was stated to be the great toe; another, one of the phalanges of the toe or hand of a human being; another, part of the hyoid bone at the root of the tongue of a human being. The tuft of hair consisted of about fifty strands of hair of a light color. The buttons were described as pants buttons. All the witnesses state they cannot tell whether the bones were of a white man, Mexican, negro, or Indian. One witness (a dentist), however, stated the five teeth found indicate they were the teeth of a human being, and too large for a woman's teeth. Defendant introduced very little testimony, relying on the weakness of the state's case to prove the corpus delicti. In addition, it is shown by him that the hair found at the fire in the woods was light hair; that not a strand of gray hair was found among the fifty or seventy strands of hair; that Lindemann had gray hair intermingled with his hair. Appellant also introduced testimony tending to show he carried Lindemann to Buda to take the train, as he had stated to the sheriff.

Appellant assigns a number of errors, involving the admission and rejection of certain testimony, and also questioning the charge of the court; but, in the view we take of the case, it is only necessary to discuss one question, to wit, the corpus delicti.

With reference to the charge of the court, appellant urges that it was not explicit enough, in that it left the jury to identify the remains by evidence concerning the death of the party, or, at least, to use evidence concerning the disappearance of Lindemann in order to identify the portion of remains found as his. On this behalf he says that the charges requested by him should have been given, particularly the seventh special charge, to the effect "that the alleged remains may be identified by direct or circumstantial evidence, if sufficiently strong; but evidence of facts or circumstances which only tend to prove that H. C. Lindemann is dead, and which have no relevant bearing towards the identification of the alleged remains as those of Lindemann's, cannot be used by you for the purpose of so identifying the said remains." In other words, the alleged remains cannot be identified, as required by law, by evidence which tends only to show Lindemann's death, but the fact of death must be established to your satisfaction by evidence which identifies the alleged remains. While, strictly speaking, the corpus delicti—that is, the body of the offense— includes the production of a dead body, and proof that death was caused, not by natural causes, but by violence, and excludes accident or suicide, yet it has generally been held by the authorities to also include the identity of the victim and the identity of the party causing the death. As was said by our court, Judge Willson delivering the opinion, in Lovelady v. State, 14 Tex. App. 560: "The corpus delicti consists of two things: First, the criminal act; and, second, the defendant's agency in the commission of such act." Mr. Wharton says: "It has already been stated that the corpus delicti includes two things: First, the objective, and then the subjective, elements of criminality. In other words—First, that the overt act took place; secondly, that it took place through criminal agency. Of homicide, therefore, it must be held essential to conviction—First, that the deceased should be shown to have been killed; and, secondly, that the killing...

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