Jackson v. State

• Decision Date: 06 May 1891
• Citation: 16 S.W. 247
• Parties: JACKSON v. STATE.
• Court: Texas Court of Appeals

Page 247

16 S.W. 247

JACKSON v. STATE.

Court of Appeals of Texas.

May 6, 1891.

Appeal from district court, Williamson county.

W. F. Robertson, for appellant. Asst. Atty. Gen. Harrison, for the State.

WHITE, P. J.

Appellant was convicted in the court below of the murder of his own child, which was only some three months old; the conviction being for murder in the first degree, with a life penalty in the penitentiary. After defendant was arrested for the crime an examining trial was held by a justice of the peace. At this trial, before any of the other witnesses were sworn, the defendant was informed by the justice of his right to make a voluntary statement as provided for and in accordance with the terms of articles 261 and 262 of the Code of Criminal Procedure, and he was expressly warned that if he made any such statement it might be used in evidence against him. He made a statement, which was reduced to writing, and properly certified by the justice. In this statement he said he had given the child away on this side the Yeagua to a man who was traveling in a wagon. Other witnesses were examined, and when the evidence commenced after a noon recess the justice was informed by the constable who had charge of the prisoner that the defendant wished to make another statement, and, upon his inquiring of defendant if such was the case, the latter said he did desire to make another statement. The justice then testifies: "And he then confessed that he killed his child, Andrew Jackson, and said he would go and show where it was buried." Court was adjourned, and the justice and the parties in attendance on the court went under defendant's direction, and with him, about a mile and a half down the road, and then, leaving the road, went some 400 yards into the woods, until they came to a spot where the defendant pointed out a hole in which he said he had buried the child. This hole had the appearance as though the dirt had been scratched out of it by animals or birds of prey. Scattered around and near this hole were found a number of small pieces of bone, none of them over four inches in length, or more than two and a half inches in width; also some locks of black, curly hair, perhaps two inches long, which corresponded with the hair of the supposed murdered child; and some articles of baby clothing, among which was a small black and white spotted calico bonnet which the witness Barber though he identified as the bonnet his wife had made for and given the missing child some time before. At this point, and after these discoveries, the defendant, being duly sworn, made the following statement, which was reduced to writing, viz.: "When I left Mr. Wash Smith's, in Williamson county, I came down the road a piece. I did not intend to kill it, but it began to cry. Then I brought it here and killed it, — mashed its head with my fists. I then digged a hole with my hand. Then I put the body in the hole, and covered it up. Then I put a log over it. Then I prayed over it. Then I went on to the road, and then on down to where I was arrested." This confession was sworn to, and signed by the defendant and certified by the justice of the peace. As a motive for the perpetration of this horrible crime it was shown that defendant and his wife had had family quarrels and troubles, and that they were about to separate, if in fact they had not already separated; and it was further proved that defendant had time and again threatened that he would kill both his wife and child in consequence of these family troubles. No physician or other scientific person or expert skilled in human anatomy examined the bones which were found about the place where defendant confessed he had killed and buried the child. None of the witnesses who examined them were scientific experts. The only one who attempted to qualify as such was the justice, who, before he was permitted to give his opinion as to the character of said bones, stated that he had seen several human skeletons, and from what he knew of human bones, these resembled the bones of a child; and he stated on cross-examination: "I have never seen a skeleton of a rabbit or of an opossum or of a coon. I do not know whether or not I could tell the bones of a small child from those of a coon or rabbit. I do not know what kind of bones the bones found were. Can only give what I think." Another witnesss, Barber, testified that he knew nothing of anatomy, and had never seen a human skeleton. "I took the bones found to be human bones. They were different in shape from any bones I had ever seen. I have seen the bones of a rabbit, and fox, and opossum. I could tell the bones of those animals from those of a child the age of the defendant's child, Andrew. The bones found were not the bones of those animals." Dr. Foster, a regular practicing physician, who was present and heard the testimony of the other witnesses as to the description and appearance of these bones, testified: "From the description given by the witnesses I could not say what they were. From the number and description of the flat pieces they would correspond with the number of bones of the head, and, if placed together, would make a surface about equal to a child's head. * * * That a child had in its body bones similar to all those described, and that those oval-shaped bones described by the witnesses would be like the skull bones of an infant child if the same was broken to pieces." Objection was made to the testimony of the non-expert witnesses as to their opinion with respect to the bones. In granting the bills of exceptions so reserved the learned trial judge by way of explanation says: "That defendant's objections to any and all witnesses stating their opinions as to whether the bones were human bones were sustained, and witnesses only allowed to describe the bones, except that the witness Slaughter, (justice of the peace,) after stating that he had seen several human skeletons, was permitted to state that the bones found resembled human bones; and the witness Barber was on cross-examination by defendant's counsel asked if he knew what kind of bones those he found were, and he answered that he took them to be human bones. Defendant's counsel then asked him why? and he said the ribs were of different shape from any animal he had ever seen. Then on re-direct examination the district attorney, over the defendant's objections, was allowed to ask the witness to give his best judgment as to the kind of bones they were, and he said he took them to be human bones. This question was allowed because the defendant's counsel had asked the witness the same question."

As to matters of skill and science the general rule is that non-expert opinion is not admissible, and it has been held that such evidence was inadmissible, especially with reference to questions pertaining to the human anatomy. Wilson v. State, 41 Tex. 320. Mr. Greenleaf says: "When only mutilated remains have been found it ought to be clearly and satisfactorily shown that the remains are those of a human being, and of one answering to the sex, age, and description of the deceased." 3 Greenl. Ev. § 133. With regard to such matters ordinarily the opinion of medical men as to the condition...