Jones v. State

• Decision Date: 25 October 1911
• Citation: 141 S.W. 953
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 953

JONES v. STATE.

Court of Criminal Appeals of Texas.

October 25, 1911.

Rehearing Denied December 13, 1911.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

W. A. Jones, alias G. D. Wilkins, was convicted of murder in the second degree, and he appeals. Affirmed.

Allen & Dohoney and B. B. Sturgeon, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On October 5, 1910, the appellant was indicted by the grand jury of Lamar county for the murder on July 6, 1910, of the infant child, without a name, of Willie Wilbur. He was convicted of murder in the second degree, and given the lowest penalty—five years.

The indictment is in two counts, though they are not given a separate number, nor are they in separate paragraphs. After the formal part, the indictment alleges that W. A. Jones, alias G. D. Wilkins, on or about July 6, 1910, in Lamar county, did then and there unlawfully, and with his express malice aforethought, kill and murder an infant child of Willie Wilbur, said child being without a name, by him, the said Jones, alias Wilkins, breaking the neck and disjoining and dislocating the neck of the said infant by then and there twisting the head and neck and pulling the head and neck and jerking the head and neck, and dislocating and breaking the neck and disjoining and dislocating the neck of said infant with his the said Jones', alias Wilkins', hands and fingers from which said several acts (enumerated above and reiterated) the said infant on said date did die, and on said date the said Jones, alias Wilkins, did then and there unlawfully and with his express malice aforethought kill and murder the said infant child by him, the said Jones, alias Wilkins, pressing and mashing the head and bowels of the said infant with his hands and fingers, and by dropping and placing the infant in a night glass and slop jar from which said acts (enumerated and again repeated), the said infant did die, a better description of the means and instruments by which and with which the said Jones, alias Wilkins, did then and there kill and murder the said infant the grand jurors cannot give. The above, in substance and effect, are the allegations, but not a copy of the indictment.

It takes some 68 pages of typewriting to give the statement of facts. We do not undertake to give in detail this testimony, but from the whole of it, gathered by taking and combining the testimony of the several witnesses, where not otherwise stated, we will give such statement as will illustrate the points raised and discussed:

The witness, a woman, Willie Wilbur, about 22 years of age, had been living in Oklahoma, and, it appears, on the place of Bill (or W. W.) Swink for about a year prior to the commission of the alleged offense. That said Swink during that time had been having sexual intercourse with her, and the testimony justified the jury to believe that she became with child by him some time in November, 1909. That about Sunday July 3, 1910, she began to have some labor pains, and she and said Swink thereupon went from where they were living in Oklahoma to the city of Paris, in Lamar county, and put up at a restaurant or boarding house known as the "Hignite House." Swink registered her name as Annie Ernest and his as J. G. Gentry, both from Texarkana, Tex. She was assigned to a room, and Swink to one adjoining, and soon after her arrival there went to bed, and practically remained in bed until after the birth and death of her child on Wednesday night July 6, 1910. She continued to have labor pains from time to time until after the arrival of the appellant on Tuesday afternoon July 5th. Appellant did not register at the Hignite House when he first arrived there, although he was assigned to and occupied a room therein, but he did register on the night of July 6th, when required to do so by the proprietor of the house, first starting to write his name W. A. Jones, but, before completing the word Jones, erased that, and instead wrote G. D. Wilkins, from Texarkana, Tex. Swink and Hignite, the proprietor of the house, were present when he did this. The appellant came to Paris to attend Willie Wilbur in confinement, knowing at the time that she was to be confined. He came at the instance of said Swink, and attended her at his instance. He made an examination of her Tuesday evening soon after his arrival there, and claims that he then discovered that she was in labor, and, while he thought it was premature, the examination developed that the birth could not be properly prevented, and he thereupon administered to her from time to time drugs for the purpose of bringing on and inducing the delivery of the child. The labor pains continued from time to time after he reached there, made his examination, and began to administer the drugs, with more or less increased severity until the child was born about 10 o'clock Wednesday night. While the women servants at the hotel waited on her and carried her meals to her Monday, Tuesday, and Wednesday, visiting the room some three or four times or oftener each of these days, no one was present at the birth of the child, and for some hours prior thereto, except said Swink and appellant. Soon, if not immediately, after the birth of the child, it began to cry, and cried somewhat vigorously and loudly. The two women working in the house and who had been waiting on the confined woman at once, after hearing the cries of the child downstairs where they were at work, went up to the room. The door was closed. Swink was standing with his back against it, and it was not opened for some time, and not until repeated and loud raps were made thereon. Finally, when they were admitted, they saw and offered to take the child, wash, and dress it, but they were not permitted by appellant or Swink to do so. At the delivery of the child, the appellant took it in his hands, one about its hips and the other about its head, had a night or slop jar in which there was some water removed from under a table, and dropped the child into this jar. He did not then tie or cut the navel cord. The child was crying at this time. He then attempted to remove the afterbirth. After letting the child remain in the night or slop jar for some time, he removed it therefrom, and placed it on a table. After the two servant women were admitted into the room, they discovered that the appellant had neither tied nor cut the navel cord of the child, and called his attention thereto. He thereupon said to them that it was no use, "it will die anyway." At this time the navel was bleeding. One of these women replied to him that he had better tie it. If he did not, she would call an officer, and have him arrested in five minutes. She then picked up an ordinary twine string that she found on the floor, handed it to him, and he then tied the navel cord. When the two servant women of the house offered to wash and dress the child, the appellant said: "No; it was not any use. It would die anyway." And he would not let them wash or dress it. These women thereupon got a counterpane and wrapped the child up in it, and wanted to lay it on the bed with its mother, but the doctor said there was no use to bother with it, and directed and required them to lay it back on the table, which they did. After remaining up there some 10 to 20 minutes, they left the room, went downstairs, informed the proprietor of the house, Mr. Hignite, and he thereupon went up to the room where Willie Wilbur and the child were, and called the appellant and Swink out, and had the doctor register, whereupon he registered in the name and under the circumstances given above.

There was much testimony as to the state of the development of the child. From the testimony of some of the doctors and some of the witnesses who saw it it seemed to be an almost, if not fully, developed child. It had long hair, finger and toe nails. Its mouth, nose, feet, and everything were fully developed, and the testimony as to its estimated weight varied from 2½ or 3 pounds to as much as 7 pounds. The testimony clearly justified the jury to believe that it weighed from 5 to 7 pounds. The mother testified that no abortion was brought on, but that it was about time for the child to be born, and she claimed that it was a well-developed child. Among other things, Willie Wilbur testified that after the doctor had dropped the baby in the slop jar, and it had remained there some time, the two women servants, Mary Blackburn and Lula Adams, came to the door and knocked. "The baby was crying at that time. The room was closed at that time. He [speaking of appellant] didn't tie the navel string just then. He waited until there was two ladies come in, Mary Blackburn and Lula Adams [the two women servants]. When they came up, the door was closed, and Mr. Swink was standing with his back to the door, and there was a hole in the door, and Swink had stopped that with paper. The hole was right at the bottom of the door—a knothole. They did not get in when they first came to the door. They knocked two or three times before they opened the door. After they knocked and before the door was opened, Jones, he taken the baby out of the slop jar then and laid it on the table on a cloth, and then Swink he just—the baby was naked at that time. Its navel string was not tied at that time. The baby was crying at that time and its navel cord was bleeding. When they came in, Mary says to the doctor, says, `Call your attention,' says, `You haven't tied the baby's navel cord.' `Well,' he says, `There hain't no use.' Says, `It will die anyway.' And she says, `You better tie it, or I will call an officer and arrest you in five minutes.' And she picked a twine string up off from the floor and handed it to him, and he tied it. The baby was laying on the table naked at that time. Mary and Lula both said they wanted to wash it and dress it, and they said, `No,' there was not any use, said...