Pounds v. State

• Decision Date: 23 March 1921
• Docket Number: (No. 5937.)
• Citation: 230 S.W. 683
• Parties: POUNDS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 683

230 S.W. 683

POUNDS v. STATE.

(No. 5937.)

Court of Criminal Appeals of Texas.

March 23, 1921.

Rehearing Denied May 11, 1921.

Appeal from District Court, Haskell County; W. R. Chapman, Judge.

Z. B. Pounds was convicted of wife murder, and he appeals. Judgment affirmed.

J. A. Dial, of Sulphur Springs, and H. G. McConnell, of Haskell, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was convicted for the alleged murder of his wife, and his punishment assessed at confinement in the penitentiary for a term of 10 years.

The case is one of circumstantial evidence wholly. The theory of the state is that appellant killed his wife with a hammer; that of appellant that wounds in her head from which she died were inflicted by the kick of a jack. Around this pivotal point all the evidence in the case revolved. The counsel for appellant earnestly insist that the evidence is insufficient to support the finding of the jury, and because of this we give a more extended statement of facts than we would otherwise feel called upon to do. Appellant, his wife, and her two children by a former marriage were living in the little town of Rochester, in Haskell county. He was running a restaurant, and during the day his wife helped him about his place of business. The two children were attending school. It appears that it was their custom to eat breakfast at home and generally to have supper at home. Appellant and deceased had only been married a few months. Prior to their marriage she had lived at Spur, in Dickens county.

The only motive for the killing is disclosed in the testimony of the witness E. P. Carr, who was distantly related to deceased. This witness testified that a few days before the killing he was in appellant's restaurant when the two little children came in and their mother gave them something to eat, and that after they went out the appellant spoke to his wife and told her she gave the children too much to eat these hard times and it would break up a rich man; and that deceased replied to him "if he was not satisfied with her and her two children that she would go back to Spur." He says they were not quarreling when he came into the restaurant, but the dispute came up after the children had eaten their dinner and gone back to school; that during the day before the killing of the deceased that night he was passing by appellant's restaurant, and appellant called him and told him he and his wife had been discussing finances, and he demonstrated by the use of some dishes and light bread what he was called upon to furnish to the family in the way of things to eat, and said, substantially, "`Now,' he says, `look;' when I was by myself I had two biscuits to furnish, now its from sixteen to twenty-four.'" The witness told appellant that he did not care to hear any further talk about it, as he had nothing to do with it; that deceased at the time was crying, the tears streaming down her cheeks, and she said upon that occasion about what she had a few days before, "if he was dissatisfied with her and her two children she would go back to Spur; that they had to eat, and that he (appellant) knew it before he married her, and that she had the girls, and that if he was not satisfied she was willing to go back to Spur with the children." This witness says upon another occasion he went into the restaurant and found deceased crying, and that she and appellant seemed to be in discussion with reference to a Mrs. Trammell, who had recently died; appellant was contending that Trammell was the best off; that he could now go ahead and live a happy life; deceased was contending that the woman was the best off, because she was through with her troubles in this world. The testimony of this witness was attacked in various ways by the appellant. He proved by witnesses that Carr had said on another occasion that he had done the appellant an injustice, and that he and his wife were not quarreling, and also attempted to show in a negative way that the relations between appellant and his wife had been pleasant. This was shown by witnesses who went into the restaurant to get their dinner, who testified they had never discovered or noticed any unpleasant relations between them, and by one witness who owned the building in which appellant was running his restaurant, and who occupied part of the building itself, and who stated he had an opportunity to observe their relations, and could hear them in the restaurant talking, and that he had never discovered any unpleasantness between them.

Appellant had two jacks which he kept at his home, and used them in operating what he called a "service barn." One of them was known as the "old jack." He seems to have kept them in separate stalls, and in watering them would turn them out separately in order to prevent them fighting. It seems to have been a custom for the deceased to accompany her husband to the barn when he went to feed, and she would attend to gathering up the eggs while he was feeding and attending to the jacks. It also seems from the testimony to have been a custom for the little girls to frequently accompany them to the barn. Bertie Lee Pounds, the oldest one of the children who was 11 years old at the time of the trial, testified that upon the night her mother was injured appellant and deceased did not go to the lot until after supper, and as they got ready to leave her mother asked her if they wanted to go, and she answered, "Yes"; that appellant told her, "No, they must stay at the house to-night and study their lessons." This was denied by appellant, and was also controverted by another witness, who claimed that the little girl afterwards said her mother told them to stay at the house and get their lessons. She further testified that it was their custom to carry a lantern with them when they went to the lot after dark, but they did not carry one on the occasion in question; after they had been gone for perhaps 30 minutes she heard her mama holler once or twice, saying, "Oh, me," that when she went to the door and opened it the appellant called to her, and told her to "run get the doctor, something is catching your mother." Appellant admits having called the child, but denies having told her "something was catching her mother," and says what he did tell her was that the "jack had kicked her mother" and to run get the doctor. Whatever the appellant said to the child, she evidently understood him to say "something was catching her mother," because the witness Mrs. Crume, the wife of the first doctor to get to the barn, and who lived near, testified she heard the child tell Dr. Crume this same thing, and it developed in the cross-examination of this child that she had testified to the same facts on the habeas corpus hearing. On one side of the barn there seemed to be a small lot, some 10 or 12 by 20 feet, in which was situated a water trough, and on the other side of the barn was a large lot in which were the stalls where the jacks were kept.

A witness, B. C. Hardin, testified that he lived near appellant's house, and some time after dark he heard some calling, but at first paid no attention to it, but afterwards recognized appellant's voice, and he was calling for him to come on down there; when he got to the lot appellant was standing in the small lot in front of the door of the barn, and he asked appellant what was the matter, and he replied, "I think a jack has kicked my wife and nearly killed her;" that she was lying in the hallway of the barn, her feet near the door, perhaps extending a little on the outside of the door; no one was there at that time except appellant, deceased, and Dr. Crume, who seemed to have gotten there a short time before this witness; they had no lights, and this witness went back to get a lantern or light of some kind. This witness stated that after returning to the barn with the lantern, and when he started to set it down, he noticed a claw hammer lying there that had blood on it, and that he moved the lantern so as to get it away from the hammer and did not disturb the hammer in any way. He described the hammer as lying a little to the right of the body of the deceased, about even with her shoulders. This witness stated that at the time he got to the barn there was nothing in the small lot; there was no jack in there at that time. He said at the time he noticed the hammer that there was blood all over it, on the handle and all over it from one end to the other; that he did not pick it up or call anybody's attention to it; that the hammer was not concealed; there was nothing over it at the time; there was some trash that had accumulated in the hallway of the barn, and the hammer was lying on the top of that.

The witness Carr, whose testimony has been referred to heretofore, testified that he told appellant, after noticing the wounds on the head of deceased, that he thought they ought to have a surgeon, and wanted to get Dr. Dunn, but appellant told him "Dr. Crume could do all that was necessary to be done." It seems the relations existing between Dr. Crume and Dr. Dunn were not very pleasant, and this witness asked Dr. Crume to send for Dr. Dunn, and his reply was not very complimentary, but the witness sent for Dr. Dunn anyway. After Dr. Dunn came and was dressing the wounds the witness Carr says he counted 15 wounds on the head of deceased; that he might have made a mistake, but he counted 15, all in the edge of the hair, with the exception of one across the nose and one just behind the ear. This same witness testified that on the next night after the killing he and some other parties went to the barn, and he saw a part of the handle of the hammer sticking out from under some hay or straw, and upon picking it up he saw that it was bloody, and there was some hair upon the handle, and it was laid down until the officers could come; that some of the hair was taken off the handle and put in envelopes. He...