Howard v. State

• Decision Date: 31 May 1922
• Docket Number: (No. 6620.)
• Citation: 242 S.W. 739
• Parties: HOWARD v. STATE.
• Court: Texas Court of Criminal Appeals

242 S.W. 739

HOWARD v. STATE.

(No. 6620.)

Court of Criminal Appeals of Texas.

May 31, 1922.

Appeal from District Court, Comanche County; J. R. McClellan, Judge.

Gibbs Howard was convicted of murder, and he appeals. Reversed and remanded.

Callaway & Callaway, of Comanche, and Wilkinson & McGaugh, of Brownwood, for appellant.

J. H. Eidson, Dist. Atty., of Hamilton, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Comanche county of murder, and his punishment fixed at death.

Following the finding on the railroad track of the Frisco Railway, not far from the town of Hasse in Comanche county, on the morning of May 13, 1921, of the dead body of Jack McCurdy, came the indictment and conviction of appellant, one Ed Walker, and W. W. Wilman, for the alleged murder of said McCurdy. The statement of facts in the instant case covers more than 300 pages. We only state enough of the facts to make clear the opinion. From the record we conclude the jury justified in finding that McCurdy came to his death at the hands of some party or parties on the night of May 12, 1921, and that his body was placed on the track of the railroad for the apparent purpose of giving rise to the belief that he was killed by accident. When found the next morning the body was badly broken and mangled, an arm cut off, feet and legs mashed, and other portions of the body scattered along the track for a distance of 50 feet. Little or no blood was found. The practically uninjured boots of deceased were found separated from any portion of the body, but his feet with the socks still on them were badly crushed.

Earl Henry for the state swore that Walker and Wilman killed McCurdy about dark at the home of Wilman, and that witness was present and started to flee, but that appellant, who was present and acting with those just named, shot at him with a pistol and ordered him back. That, after deceased had been beaten to death by Walker and Wilman, witness aided them and appellant to place the body on a quilt and then on a horse ridden by Walker, and that Wilman, riding another horse by the side of that ridden by Walker, between them carried the body to a point near the railroad track where they were met by witness and appellant, who had gone to the place on foot, and the four of them placed the body of deceased on the track. After this was done the boots were removed from the feet of deceased by Wilman, who put them on and proceeded to make tracks leading from a path up to the point where the body was placed, so that it would appear as though deceased had walked up the path and onto the track. The boots were then left near the body.

Henry further stated that the three men then demanded of him that he aid them in every way in concealing the crime and threatened him with dire consequences if he did not say and do all he could to help them in this matter. He testified that he went home after leaving them and there took the spurs of deceased from the horn of his saddle and hid them, and likewise hid parts of a liquor making outfit which had been used by the parties. Henry is shown to have made various statements before the coroner's inquest and to the grand jury favorable to the accused men, which were explained by him on the witness stand, as well as his other acts favorable to them, on the hypothesis that he feared for his own life. Whether Henry was an accomplice seems to have been considered an issue, but the chief contest was over the corroboration of said witness. For the state it was contended that there was ill feeling on the part of Walker and the others toward deceased, growing out of illicit liquor transactions, and that the men accused had been concerned in making whisky on premises controlled by the deceased and had been notified by him that this misconduct must stop. It was further shown that deceased had been to Comanche, the county seat, on the day he was killed, and the state claimed that the three accused men believed that he had gone before the grand jury and reported their misdoings in regard to the whisky business.

There seems no contest of the fact that McCurdy and Henry were together in the town of Hasse, a mile or more from where the body was found, until a rather late hour in the afternoon of May 12th. McCurdy lived in Hasse and his business was the management of a large tract of land, principally pasture lands, a short distance from Hasse, on which land lived Wilman and Henry and which tract nearly surrounded the land on which Walker lived. Appellant also lived in Hasse. It seems not controverted that deceased and Henry left Hasse in the late afternoon of said day, going to the home of Henry. After their arrival, Mrs. Henry and her sister left the two men there. Later they went to the house of Wilman. From this point the testimony is contradictory. Without going into details, state witness Henry claimed that, soon after he and McCurdy got to Wilman's house and while they with Wilman were sitting on the edge of the porch, Walker and appellant rode up, one on a black and the other on a gray horse. They dismounted. Almost at once a quarrel arose over the supposed visit of deceased to the grand jury on that day. Walker and Wilman assaulted deceased, and Henry says he started to run and that appellant shot at him with a pistol and made him come back, and from that time on until after Henry was arrested and apparently concluded to tell a different story, he seems to have talked, acted, and testified in every way as though neither he nor the other three men knew anything of the killing. Henry's testimony on the instant trial suggested the theory of duress in regard to such acts and conversation.

The defense was an alibi for appellant and Walker; that they neither saw nor had anything to do with McCurdy that night, and for Wilman essentially the same; the defense witnesses claiming that Henry and deceased were drunk at Wilman's house and left separately, Henry to go to his house, and deceased to go to Hasse; and that thereafter deceased was killed by some means unknown to those at Wilman's. The nearest way from the home of Wilman to Hasse appeared to be up the railroad track. These matters just mentioned appear in the testimony in this case.

By bill of exceptions No. 6, appellant complains that the sheriff and two deputies were permitted to testify that, on or about May 31, 1921, some weeks after the alleged killing and while appellant was in jail, they went with Henry to the place where he claimed the killing occurred, and the bill sets out what they testified that Henry did as follows:

"Showed to each of them and pointed out the place where he, the said Henry, claimed that he and the defendant Gibbs Howard stood and where this defendant and Ed Walker had stood, when, as he claimed, Jack McCurdy was knocked down and killed; and the court permitted each of the said witnesses over defendant's objections to testify that the said Earl Henry had pointed out to them where he ran before he was shot at by Gibbs Howard, at the time the murder was supposed to have been committed, and the place where he had stopped and turned back when Gibbs Howard shot at him, and the place where he claimed the bullet passed through the trees near him at said time and the place where he claimed that the defendants W. W. Wilman and Ed Walker had rode their horses carrying the body of the deceased to the railroad track; and to testify that the said witness Henry showed and pointed out to them a certain post oak tree or sappling where he told them said horses were tied, and each of said witnesses was permitted to state, over the objections of the defendant, that the said Earl Henry had pointed out to them where he had hidden a certain pair of spurs belonging to the deceased Jack McCurdy, and a certain whisky coil which the witness stated belonged to him and the said Jack McCurdy, and which he had buried; and the court permitted each of the three said witnesses to testify, over defendant's objections, that they had found the said spurs and the whisky coil buried at the place shown them by the said witness, and had found certain broken twigs where the said witness Earl Henry claimed the bullet had passed through the trees at the time he was shot at."

This was objected to as hearsay, being out of the presence and hearing of the appellant, who was in jail. The state's position seems to be that this evidence is in the nature of a confession, or statement while under arrest, which was admissible by reason of its being found to be true, and which conduced to show guilt. In addition to the objections above mentioned, appellant contended that this was an effort to corroborate Henry by proof of his own hearsay acts and statements. We cannot assent to the application of the rule invoked by the state. The authorities cited in support of admitting the testimony are Kennon v. State, 46 Tex. Cr. R. 359, 82 S. W. 518; Funk v. State, 84 Tex. Cr. R. 402, 208 S. W. 513, and those cases collated on page 37 of Branch's Ann. P. C. There is nothing in the Kennon Case which, in our opinion, at all supports the state's contention. Referring to the Funk Case, we think the state misapprehends this authority, and, in view of the fact that it is not stated in the opinion in said case just what was before the trial court when he permitted the evidence of the sheriff relative to his going to a certain culvert and there finding three pistols, and that this was under the direction of other participants in the homicide than the accused on trial, we have examined anew the record on file in the office of the clerk of this court in said Funk Case, and now state that the bill of exceptions in that record relating to this particular matter, shows that the sheriff, some time after the homicide, went after two men who were charged with the killing, brought them to San Antonio and placed them in jail. While testifying as a witness...