Kunde v. State

• Decision Date: 27 October 1886
• Citation: 3 S.W. 325
• Parties: KUNDE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 325

KUNDEv.

STATE.¹

Court of Appeals of Texas.

October 27, 1886.

Appeal from district court, Guadalupe county.

The indictment in this case was joint against the appellant Taylor Kunde, Albert Kunde, Ludwig Kunde, and Frederick Kunde, and charged them with the murder of Jabez Drennon, in Guadalupe county, Texas, on the twenty-sixth day of October, 1874. The appellant, being alone upon trial, was convicted of murder in the first degree, his punishment being assessed at a life-term in the state penitentiary.

The statement of facts in this case, covering upwards of a hundred pages in the record, is too voluminous even for a connected synopsis, but enough of the evidence is given in resume below to elucidate the rulings of the court.

The deceased was assassinated at night, on the public highway. He was en route to his rural home from church when the fatal shots were fired from ambush. The ambush was established inside of and near the corner of the Kunde field, which field inclosed the residences of the defendant and his co-defendants. The defendant then lived in the house of his father, Ludwig Kunde, which was about a half a mile distant from the house of Frederick Kunde. The Kundes, father and sons, were arrested for the murder. This appellant was alone upon trial in this case. In stating the facts upon which the rulings of the court are based, reference will be had to the head-notes in the order in which they are reported.

(1) Over the objection of the defendant the state was permitted to read in evidence certain indictments charging the appellant and his co-defendants with the theft of hogs, the property of the deceased, and for perjury. The name of the deceased was indorsed upon each of those indictments as a witness for the state.

(2) The said indictments were presented by the grand jury subsequent to the assassination of the deceased. The predicate upon which the said indictments were admitted was the testimony of the witness Moore. He testified that he was the justice of the peace before whom was had the examining trials of appellant and his co-defendants upon complaints charging them with the offenses for which they were subsequently indicted. Those examining trials were had a few days before the assassination, and on those trials the deceased, who was the main and indispensable witness against them, testified for the state.

(3) Moore having testified to the examining trial of appellant and his co-defendants upon complaints charging them with the offenses subsequently charged against them in the indictments admitted in evidence, the state proposed to prove by him that the deceased, at the same time, was charged in his court with the violation of the pistol law. The exclusion of this evidence is the subject-matter of the third head-note.

(4) The excluded evidence referred to in the fourth head-note was the proffered testimony of a witness to the effect that, in the August preceding the assassination, the appellant's co-defendant, Taylor Kunde, obtained from the witness a shotgun and ammunition, and when he obtained them, threatened deceased with violence.

(5) The witness Zorn testified for the state that, at the inquest on the body of the deceased, the state's witness Morrison handed him the fragment of a German newspaper, and a piece of writing paper from an old copy-book, which he claimed he found on the ground of the shooting, the same having been used as gun-wadding. Witness subsequently went to old man Kunde's house and found a dilapidated German newspaper, into which the fragment given him by Morrison (who testified that he found it on the ground of the killing, and that it had been used as gun-wadding) fitted perfectly; the paper, with the fragment inserted, constructing a full and complete grammatical account of an incident in Arkansas. At this point, witness was handed a bundle of papers found among the rubbish of the court-house garret indorsed: "Papers found by Zorn at Kunde's." Witness recognized the indorsement as being in his handwriting. Stating that it would require much time and patience to fit the fragments together so that he could pass intelligently upon their identity, the court ordered the witness to retire with the papers into an anteroom. See head-note 6. On his return, Zorn stated that he found one of the smaller to fit into a larger fragment, and that the two constructed the grammatical account of the Arkansas incident, exactly as he remembered to have read it from the first-named fragments, and he was confident the papers were the same.

(7) Several defense witnesses testified that two Mexicans left old man Kunde's house about dusk on the evening of the murder, and went towards the place where deceased was afterwards shot; that those Mexicans claimed that deceased refused to pay them for work they had done for him; that they took a gun each, which they borrowed from Taylor Kunde; that they did not return until early next morning, when they brought the guns back, each with one barrel empty, drew the wages due them by old man Kunde, and left. To discredit these witnesses the state asked them why they did not testify about the Mexicans on the habeas corpus trial of appellant a few days after his arrest. The head-note No. 7 discloses the explanation attempted by the defense, and excluded by the court.

(8) The evidence throughout the general issue was circumstantial. In addition to the facts stated, the state proved that, before the trouble about the hogs, the appellant and deceased were good friends. A few days before the complaint charging the Kundes with theft of hogs was filed in justice's court by deceased, he and appellant met on the highway. Appellant asked deceased if he thought he (appellant) took his hogs. Deceased replied that he did not know that, but knew that his brothers did. Appellant then asked deceased what he was going to do about it. Deceased replied that that was his business. Appellant put his hand on deceased's shoulder, and said: "They will be dear hogs to you." The state further proved that the tracks of two men led from the ambush in the direction of, and near to, old man Kunde's house. One of those tracks was made by a No. 6 boot with a metal-tipped, and peculiarly stamped heel. Such a boot was worn by one of the Kunde boys at the habeas corpus trial, but the witnesses for the state not only could not state positively that the appellant was the party who wore them, but they varied in their recollection upon that point; one-half, if not more, of the witnesses believing that the said boots were worn on that trial by Taylor Kunde. The state proved also the finding of a piece of German newspaper in old man Kunde's house, and a gun-wad made of German newspaper, on the ground of the killing, which gun-wad, when spread out, fitted with nicety into the paper found in Kunde's house, etc. It proved, also, the escape of the Kunde's from jail pending trial, and their flight. The defense proved that the habeas corpus trial which was had a few days after the killing was attended by a large concourse of armed citizens, who proclaimed their intention of hanging appellant and his co-defendants, and that they desisted only by reason of the personal appeal of the district judge who presided. By members of his family not indicted, the appellant proved a complete alibi. He proved, also, that his brothers, Taylor, Albert, and Frederick Kunde, all wore number six boots or shoes, and that he was wearing shoes at the time of the killing, and of the habeas corpus trial.

W. M. Rust, and Waelder & Upson, for appellant.

For the purpose of showing a motive on the part of the defendant to kill the deceased, an indictment against the defendant, found prior to the killing, at the instance of the deceased, or in the finding of which he was an important witness, might be admissible in evidence; but an indictment found after the killing of deceased is not admissible in evidence for any purpose. Robinson v. State, 16 Tex. App. 354; Taylor v. State, 14 Tex. App. 346; Hart v. State, 15 Tex. App. 227; Rucker v. State, 7 Tex. App. 549; Somerville v. State, 6 Tex. App. 433; Traverse v. State, 20 N. W. Rep. 724.

The court erred in permitting the state to read in evidence the portion of the written testimony of A. B. Moore, taken on the habeas corpus trial, October 28, 1874, before Judge JOHN P. WHITE, and in not permitting the defendant to read in evidence the balance of said Moore's testimony, for the reasons stated in the bill of exceptions, because—First, the introduction of evidence tending to show that "some members" of the family to which defendant belonged had been prosecuted for crime at some indefinite period, without in any way connecting the defendant with such prosecution, seems so clearly erroneous as to need no authority to support the proposition of its inadmissibility; second, a statement that an officer produced the records of his court in certain prosecutions is not the best evidence of the contents of such records, and is no proof of the same; third, when part of an act, declaration, or writing is given in evidence by one party, the whole may be given in by the other. Code Crim. Proc. art. 751; Ryan v. State, 8 Tex. App. 254; Pharr v. State, 9 Tex. App. 129.

In a case where the evidence is wholly circumstantial, the defendant is entitled to any and all evidence calculated to throw light upon the transaction, and especially to any fact or circumstance which might tend to show that some other person did the killing. Cooper v. State, 19 Tex. 449; Means v. State, 10 Tex. App. 16; Dubose v. State, Id. 230; Hart v. State, 15 Tex. App. 202; Barnes v. State, 41 Tex. 342; Noftsinger v. State, 7 Tex. App. 301; Shultz v. State, 13 Tex. 401; McInturf v. State, 20 Tex. App. 335.

The court erred in not permitting defendant's witness William M. Rust to testify to the testimony of the deceased witness E. T. Rhodes, given on said habeas corpus trial.

The court erred in...