Monk v. State

• Decision Date: 10 April 1889
• Parties: MONK <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 460

MONKv.

STATE.

Court of Appeals of Texas.

April 10, 1889.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

Indictment of J. W. Monk for murder. The indictment alleged that C. Spears was killed on the 1st day of November, 1887. On the 25th day of November, 1887, the dead body of a man was found in a small creek, crowded under a fallen log, covered with trash and twigs, and to some extent submerged in water. Decomposition had progressed to that extent that none of the parties who saw it were able to determine from the body itself whether it was that of a white or a black man. Several witnesses, however, identified different articles of apparel found on the body as articles worn by C. Spears when last seen alive. It was then proved that Spears was last seen in company with defendant and one W. C. Jump on the 25th day of October, 1887, when the three left Anderson's house together, ostensibly to go to Dallas. One witness testified that he had seen Spears in possession of a considerable sum of money, but he never knew Spears to expose it in the presence of either defendant or Jump. Another witness testified that, a few days before his disappearance, Spears exposed a roll of paper money, but he did not know how much the roll contained. Defendant was present, but witness could not say that he saw the money. It was shown that, when they last left Anderson's house, Spears and Jump were riding sorrel ponies, and defendant a gray pony. When arrested, some months after the disappearance of Spears, defendant had a small sorrel pony in his possession. Mrs. Monk, testifying for the defense, declared that she had often handled and repaired the coat worn by Spears when last seen alive, and would know it by the rents and repairs. The coat exhibited as the coat found on the dead body was similar in color to Spears' said coat, but most positively was not his coat. Defendant and Spears traded horses a few days before Spears left. For some days before he left Spears expressed grave fears of arrest for fence-cutting. When he and defendant and Jump left Anderson's on October 25th, they went towards and said they were going to Embree, and Spears told witness that he probably would not return, and directed that witness collect from one Adams and apply a certain debt, due him from Adams, for his board with her. Two physicians testified that a body placed in the position of the one found would not attain the degree of decomposition described before the expiration of from three to five months.

Rev. St. Tex. art. 3010, disqualifies a juror who has served for six days during the preceding six months in the district court, or during the preceding three months in the county court. The juror challenged had served but five days.

Fitzhugh & Wozencraft, Smith & Obenchain, and K. Foree, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction was for murder of the second degree, with the penalty fixed at five years in the penitentiary. The state challenged the proposed juror for incompetency, upon the ground that he had served one week on the jury in the district court of Dallas county within the past six months. Bailey had served five days during a week....