Hampton v. State

• Citation: 183 S.W. 887
• Decision Date: 02 February 1916
• Docket Number: (No. 3920.)
• Parties: HAMPTON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

183 S.W. 887

HAMPTON v. STATE.

(No. 3920.)

Court of Criminal Appeals of Texas.

February 2, 1916.

Rehearing Denied March 1, 1916.

Appeal from District Court, Franklin County; H. F. O'Neal, Judge.

Wade Hampton was convicted of murder, and he appeals. Judgment affirmed.

T. C. Hutchings, of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 99 years' confinement in the state penitentiary.

Mrs. Talitha Caroline Casey was murdered and her body crowded into a box in her smokehouse October 12, 1891. Appellant was arrested the next day and placed in jail. The grand jury failed to indict him, and he was released. In 1914, 23 years after Mrs. Casey was murdered, additional testimony was discovered, and the grand jury of Franklin county November 4, 1914, returned an indictment charging appellant with the crime. Thereafter he was arrested in Marion county, where he had been since he was released from jail in 1891. The evidence shows beyond a shadow of doubt that Mrs. Casey was brutally murdered; her throat being cut and other wounds inflicted. There were evidences that a severe struggle occurred, and she had fought for her life, but to no avail.

The first two bills in the record complain that the court erred in not permitting appellant to withdraw his announcement of ready and in not quashing the venire drawn. The ground relied on is that in drawing the venire the clerk drew the name of J. Stam Davenport, but in the list served on appellant this name was written J. Stam Davis. This would be good ground for challenge to this juror when called, but a clerical error of this character would be no ground to quash the venire drawn, and the court did not err in overruling the motion to quash the venire. Apparently the court sustained the challenge to the juror, for it does not appear that he served on the jury. Bowen v. State, 3 Tex. App. 617; Mitchell v. State, 36 Tex. Cr. R. 301, 33 S. W. 367, 36 S. W. 456, and cases cited.

Bills of exception Nos. 3 and 4 show that Aaron Brown was permitted to testify:

"That 20 years after the death of Mrs. Casey he plowed up in the back yard of the place occupied by defendant in 1891 some quarters, nickels, and dimes; that the dates on these coins show they were minted in 1855, 1859, 1868, 1876, 1877, 1887, and 1888, all prior to the death of Mrs. Casey."

The court did not err in admitting this testimony, for the evidence shows that at the time of the death of Mrs. Casey she had in her purse (which was in her pocket) $4.30, all in small change—no greenbacks; that in the box where she was found, and loose in her clothing at the time of her death, only 85 cents was found; the remainder of the money being missed. It was further shown that appellant lived at the place where the money was found at the time of the death of Mrs. Casey; that he immediately left, and no other person had occupied that place until this money was plowed up; that it bore evidence of having been buried for a long time, it being corroded and black. Under such circumstances the evidence was admissible that the jury might determine from all the evidence whether or not this was the money taken from Mrs. Casey at the time she was killed. The court, in approving the bill, states:

"I admitted the coins because they were found in the back yard of defendant, who was the last person who lived on the place up to the time these coins were plowed up. The evidence shows that the deceased, Mrs. Casey, had such coin at the time she was murdered, and all the coin bore date prior to the time of Mrs. Casey's death, and it was admitted as a circumstance for the jury to consider."

In the next bill it is stated that Marion Ravine was permitted to testify that on the day Mrs. Casey was killed he saw appellant's dog about 1 o'clock coming from the direction of Mrs. Casey's and going towards defendant's house. If this was all the testimony, it would be slight, if any, evidence that appellant also traveled along this way about this time, for Ravine does not claim to have seen appellant on that occasion. But this is not all the evidence. A man's barefoot track was found in the smokehouse, full of blood, and so clotted that the track could be dug out. Not far from this smokehouse it was found where a horse with a small foot had been hitched; the track of this horse was followed to where it jumped a fence into appellant's field, and a man's barefoot track was there found, which corresponded with the track found in the smokehouse by the dead body of Mrs. Casey. The horse's track was then traced through appellant's field into his lot. The track made by appellant's gray horse found in the lot was measured, and it corresponded with the tracks found where the horse was hitched near Mrs. Casey's house, and traced from that point to the place where the fence had been partially taken down, and the horse jumped over the remainder, and with the horse track leading from this place to appellant's lot. The dog of appellant the witness was permitted to testify about seeing was traveling in the same direction, and near the place where the horse's tracks were discovered and traced. This rendered the testimony admissible, and especially is this true when the track that was dug up in the smokehouse was fitted to appellant's foot. The fact that appellant was under arrest when this track was fitted to his foot would not render such evidence inadmissible. Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595; Guerrero v. State, 46 Tex. Cr. R. 447, 80 S. W. 1001; Meyers v. State, 14 Tex. App. 48; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Squires v. State, 54 S. W. 771.

The evidence of the witnesses that they "tracked a pony from near deceased's home to the back of defendant's field across the woods and into and through defendant's field up to the back of his lot" was clearly admissible under all the authorities, and the bills complaining of this matter present no error. Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. 405; Parker v. State, 46 Tex. Cr. R. 465, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893. Especially in this case is the testimony admissible, as the record shows the foot of appellant's gray horse found in his lot was measured and shown to have fitted the tracks leading from near where the deceased's body was found to appellant's lot. Of course, this does not conclusively prove appellant was riding the horse on this occasion, yet it is a circumstance tending to connect him with the offense. And as a confession of appellant is testified to by another witness, all these circumstances are admissible in evidence, tending to support and show the truth of the confession.

Appellant also objected to Marion Ravine being permitted to testify that he saw in the smokehouse, near the body of deceased, a barefooted human track, which looked to be a grown man's track, and it appeared to be the same kind of track as that he saw in defendant's field where the horse jumped the back fence, and objected to the testimony of Bill Stokes that he saw the human tracks inside the field near the fence, and they compared favorably with tracks made by defendant. Many and numerous objections were urged to this testimony; but, inasmuch as Stokes testified he measured the tracks and compared them, and by comparison it was his opinion it was the same track, this testimony was properly admitted. It is true he says:

"The soil was very loose sand, and a correct measurement would be hard to get. We could not get it absolutely correct, but we did the best we could."

He also says:

"We measured the pony's tracks and compared them with the tracks found, and they corresponded very well."

That he gave the measurements to Mr. Langston, who in 1891 was sheriff of the county, and he did not know where they now are. As said in Cordes v. State, 54 Tex. Cr. R. 210, 112 S. W. 943:

"If measurements were made at the time, it is not necessary to produce the stick with which the tracks were measured, on the trial, before proof of result of the measurements is admissible."

It would be rather remarkable if the measurements, made at the time, 24 years ago, had been preserved, but a witness can testify he measured the tracks at that time and remembers they corresponded. Weaver v. State, 46 Tex. Cr. R. 618, 81 S. W. 39; McLain v. State, 30 Tex. App. 483, 17 S. W. 1092, 28 Am. St. Rep. 934; Goldsmith v. State, 32 Tex. Cr. R. 115, 22 S. W. 405; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Meyers v. State, 14 Tex. App. 48; Weaver v. State, 43 Tex. Cr. R. 344, 65 S. W. 534. While it is true Mr. Ravine himself did not do the measuring, or any measuring, he was with Mr. Stokes, who did the measuring, and after Mr. Stokes had testified to the measurements, the testimony of Mr. Ravine, as well as that of himself, became admissible.

Appellant objected to witnesses being permitted to testify that they at the time— "sifted the ashes in defendant's fireplace and found a set of buttons which were overall buttons, and a set of shirt buttons, less one."

Witnesses who saw appellant on the morning of the homicide testify that he was wearing a pair of overalls, and had on a shirt. When arrested the day after the homicide appellant had on a pair of dark pants and a new shirt. His place was searched for a pair of overalls, and none could be found, when the ashes in the fireplace were sifted and these buttons found. Witnesses testified Mrs. Casey was found in a box in...