Middleton v. State

• Decision Date: 03 December 1919
• Docket Number: (No. 5471.)
• Citation: 217 S.W. 1046
• Parties: MIDDLETON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1046

217 S.W. 1046

MIDDLETON v. STATE.

(No. 5471.)

Court of Criminal Appeals of Texas.

December 3, 1919.

On Motion for Rehearing, February 4, 1920.

Appeal from District Court, Liberty County; J. L. Manry, Judge.

T. E. Middleton, alias T. E. Lewis, alias Blackie Lewis, was convicted of murder, and he appeals. Affirmed.

C. F. Stevens, of Houston, and W. T. Norman, of Liberty, for appellant.

C. M. Cureton, Atty. Gen., and E. F. Smith and Alvin M. Owsley, Asst. Attys. Gen., for the State.

LATTIMORE, J.

In this case appellant was convicted of the murder of Mrs. Mary Lewis, in the district court of Liberty county, and his punishment fixed at death.

Without going into the sickening details of this case, which show without controversy that a helpless woman was knocked in the head and killed by those for whom she had cared and provided, we make this brief statement of the facts:

The evidence is sufficient to show that deceased came to her death as the result of the criminal agency of another, and that appellant was connected with the killing, either as accomplice or a principal.

One Robert Osment testified, under agreement with the state, that he actually committed the homicide, but that appellant had carried the 11 year old child of the deceased away from the scene of the killing to keep her from being a witness thereto and prevent the necessity of killing her also; and that the killing was in pursuance of an agreement so to do and for the purpose of getting the money of deceased, both what she had on her person and in the bank, and the payments of a continuous income, which was hers from various sources. Nothing in the record discloses any act or word of deceased showing enmity toward either appellant or Osment, or that the motive for the killing was other than the removal of an obstacle which stood between them and the getting of her money.

According to the story of this accomplice, after his victim was killed by repeated blows on the head from a hammer, he got a money belt off of her body, which he gave to appellant; they left the community together the next day in the automobile of deceased; both of them told other parties before leaving that Oklahoma officers had come and gotten deceased; appellant claimed that she and they would be back shortly; he sold hogs belonging to her and collected money for them. Soon after her death he began forging checks on her bank account, upon which he got the money; later, and just before the return of the indictments against him and Osment, he stated that deceased was in Kansas City, and would be down in that community the following spring.

Appellant placed no witnesses on the stand.

An examination of the record shows that the first error complained of by appellant is that the charge on accomplice testimony is not correct, in that it instructs the jury that there must be other evidence than that of the accomplice tending to connect the accused with the offense charged. This charge was correct. See 1 Branch's Ann. Penal Code, § 710. The words "tending to connect" are not used as referring to the accomplice's testimony, but to the corroborative testimony.

Appellant reserved three bills of exceptions, which appear in the record. The first bill complains that the accomplice witness, the man Osment, who turned state's evidence, was brought from the county jail to testify, and was therefore under intimidation and could not testify freely, and after he had been permitted to testify the court overruled appellant's motion to strike out his testimony on the ground that he was the perpetrator of the crime, and his case had been dismissed, but that he had not been released from custody. There is nothing in the record to show any statutory affidavit for severance, and no tenable objection made before this witness testified. The fact that he was brought from the jail would be no valid ground of objection. It would in no event be sufficient for appellant to make a motion to strike out the objectionable testimony of a witness upon grounds not presented when the witness offered to testify, and there was no error in overruling the objection made, or in refusing appellant's motion. There is nothing apparent in the record showing any intimidation of the witness, or any refusal to testify fully to any questions asked him upon either direct or cross examination. It appears from the record that the case against this witness had been dismissed.

Appellant's next bill of exceptions presents all of the exceptions taken to the court's charge, none of which point out specifically, by quotation or paragraph, the errors complained of, but, in view of the seriousness of the case and the gravity of the punishment, we have considered the matters contained in said exception. It is complained that the court erred in telling the jury that one may be a principal offender who is not bodily present when the offense is committed. This was not error, as it is in accord with our statutes and decisions that one may be a principal who is not present in person. See Branch's Ann. Penal Code, arts. 76, 77, and 78, and authorities cited. Again, said charge is excepted to for submitting to the jury the law of principals; it being contended that there was no evidence justifying the same. We cannot agree with this contention. It has been held in this state that an accomplice is one who completed his offense before the crime is actually committed, and whose liability therefor is dependent on his previous acts in connection therewith. Cook v. State, 14 Tex. App. 96; Bean v. State, 17 Tex. App. 61. So that in arriving at a determination of the question as to the attitude of one whose connection is shown, both by the testimony of the accomplice and the attendant circumstances, to have existed before and after the commission of the crime under investigation, we might look to the rule mentioned for determining who are accomplices.

Referring to the contention of appellant that one cannot be a principal who is not bodily present at the time of the commission of the offense, we might remark that it is seriously questionable under this record whether appellant was absent from the scene at the time of the killing. The accomplice testified in detail to extended and continuous conversations with appellant prior to the killing in which there was a growing insistence on the part of appellant that Osment kill deceased in order that they might get her money, and that it was finally agreed that Osment should kill her the day prior to that of the actual homicide; and that on that day Osment took deceased in the automobile and carried her out in the bottom, away from the camp, with the intention of killing her, but his heart or nerve failed him, and he brought her back to camp alive. He testified that appellant cursed him and abused him for not killing her that day, and told him that he must kill her the next day or some one would not leave the river bottom alive. He also said that appellant told him in detail how to kill her, and what to do with the body, etc.

The evidence shows that the next day, the same being the 16th of August, at about 3 o'clock in the afternoon, appellant (who went by the name of T. E. or "Blackie" Lewis, and was known in the community as the son of deceased) and the little girl Violet Lewis carried Osment and the deceased in a skiff from the houseboat occupied by the entire party to the bank of the river. The automobile of deceased was on the river bank. Appellant and the little girl did not go up the bank to the automobile, but Osment and deceased did. We quote from the testimony of Osment:

"Anyhow, she and I went up the river bank, and I took her to the car. I got a chance to change the casing, and she started to help me, and she stooped down. * * * When she stooped down I hit her with the hammer * * * on the head. * * * I do not know how many times I hit her. * * * It was between five and ten minutes, I guess, after I landed on the bank, until I did that."

This witness further says that just before he hit her he heard a noise in a little thicket right close by, which he thought was made by appellant, and that he was afraid of appellant, and assaulted the deceased and killed her as aforesaid. Where, in fact, was appellant at that time? When Osment and deceased were landed from the skiff a few minutes before the killing, Osment says appellant left to go to the launch.

The child who was in the skiff with appellant testified as follows on this point:

"Blackie (appellant) and I went to pump out the launch. * * * We had gotten about as far up the river as from here to that brick building out there—as far as from here to the back of the house. * * * Blackie got out. * * * He says, `I will walk around the bend. I don't want to pass old man Green's camp.'"

The child further states that he told her he would cut across the bend and meet her when she got around there, and that she paddled the boat on up the river around the bend and that he did meet her; that it was a nearer way across the bend than the one she had to go with the boat; that at the point where he got out of the boat she could not see her mother and Osment up on the bank.

It was a very singular circumstance, indeed, that appellant should have landed Osment and deceased from the skiff and that they went up on the bank to the automobile, where Osment killed deceased in a few minutes, and that as soon as appellant got out of sight, and at a distance estimated by the child as far as the back of the house, he should have landed from the boat and had the 11 year old girl child paddle the boat against the current and around the bend, while he went across the nearer way. What was the noise that was heard by Osment in the nearby thicket, which he says he thought was appellant? The record is silent as to appellant's movements from the moment he landed from the boat until he had met the child after she had paddled around the bend; but we note...