Walker v. State

• Decision Date: 01 January 1874
• Citation: 42 Tex. 360
• Parties: ANDREW J. WALKER v. THE STATE.
• Court: Texas Supreme Court

42 Tex. 360

ANDREW J. WALKER

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Galveston. Tried below before the Hon. Sam. Dodge

A little after dark on Sunday evening, the 19th day of May, 1872, Green W. Butler and his family had finished their supper, at the residence of Butler, on Clear Creek, in Galveston county.

Green Butler then walked out of the room in which the family had taken tea, upon the gallery of his house, and while there standing, some persons rode up in front of the house and gallery, and stopped outside of the yard gate, about thirty or forty feet from the house, and asked if they could get supper, to which Butler replied, “Alight; certainly.” Butler then walked out to the gate, and two persons who had dismounted remained outside of the gate until Butler reached the same, and then one of them immediately shot Butler with a pistol, in the breast, without further “parley,” and Butler fell upon the ground as if dead, whereupon the two persons ran away on their horses. Butler survived the shot about ten minutes, and then died; but before he died, he told several persons who were about the house at the time, who it was that had killed him.

The evidence shows that Mrs. Annie Butler, the wife of the deceased, heard the question asked by the persons as they rode up, and as distinctly heard the reply, and also the shot that followed so soon as Butler could walk to the gate. Mrs. Butler testified that she ran immediately to the prostrate form of her husband, who was, when she reached him, supporting his head on his hand and elbow as he lay upon the ground.

She asked him if he was dead, and he replied, “Yes, Annie, I am dead (or dying). Andrew Walker killed me, and little Isam was with them. I did not know the other.” There were two other witnesses who heard this declaration repeated two or three times--Joe White and Ebbie Lewis, the one being a visitor at the house, and the other an inmate of the family of Butler.

The evidence of these three witnesses discloses the fact, that before Butler died, and before he repeated the above declaration, he recognized every one around him, and asked to be turned from one position to another, in order to relieve his agony, and in all respects he acted as in his perfect senses after the fatal wound had been inflicted. “Little Isam,” who was spoken of by Butler as being “with them,” was a negro boy who was well known to Butler, as having been a long time in his (Butler's) employ; and he testified that it was true that he (Isam) was present at the time of the killing (or shooting), and that he saw a tall man (such as the appellant) pull out a pistol and shoot Butler, without any talk between any of the parties; and he saw another shorter man standing alongside of the one who delivered the shot. Isam's testimony indicates that he was there by a seeming accident. “Isam knew defendant well; would know him anywhere; saw the face of the man who fired the shot, and could not say that it was defendant.”

Two or three witnesses corroborated the truth of Isam's evidence as to the fact that he (Isam) was there at the time of the shooting.

The court admitted the declarations, as within the rule under the statute.

Upon this testimony the State rested the case against Andrew Walker.

It was testified for the defense that the two Walkers and Black were at the house of Mrs. Walker (mother of appellant), distant four and three quarters miles from Butler's; that they left Mrs. Walker's at half an hour before sunset, proceeding eastwardly in the direction of Summit, whither they were going; that “at sunset,” about “sun-down,” they reached Hugh Kelly's, on the way to Summit; that they remained half an hour at Kelly's; that from this point the distance to Summit is five and a half miles eastward, and to Butler's five and three-eighths miles southward; that they left Kelly's “after sunset;” that they were met at Kelly's bridge by Jerry Thornton (State's witness) “about dusk;” “met them at the bridge just at dusk;” that this bridge is about two hundred and fifty yards eastward from Kelly's house, on the road to Summit. Three men were shortly after seen by Bob Thornton passing his house. He swore: “It was just growing dusk when I saw three men riding by me slowly, side by side, talking, coming towards Summit in a walk.” This point is one and a quarter miles eastward from Kelly's house, and four and a quarter miles from Summit, and about five miles, by any feasible route, from Thornton's house to Butler's. It was in evidence that they were met half-way between Kelly's and Summit by Lea, who had left the camp at Summit “after sun-down,” to go to Kelly's; that they spoke to him and he knew them. They were riding in a walk. Not dark when he met them. This point is distant from Butler's about six miles, and from Summit about two and a half miles. It was testified that they arrived at Summit, which is distant from Butler's house six and five-eighths miles,“F “”about 8 o'clock,”--“it was not later than 8.15 o'clock, P. M.” On the 19th of May, the sun set at 6 50. The moon was full on the 21st of May. It appears, from the testimony, that there was no unfriendly feeling known to exist between the accused and the deceased.

The State then rebutted, by evidence showing that two persons in male attire were seen, just before the murder, within a short distance of Butler's residence, riding on horseback, in the direction of Butler's house, one of them on Walker's dun horse, as recognized by the witness, who knew the horse well, and which was shown to be the same horse that Walker was riding on that afternoon when last seen.

It was also in evidence, by the same witness, that the killing was done in such time as it would have taken the two parties to ride the distance from where seen to Butler's, and that the shot and screams of the wife, thereafter, were heard by the same witness who saw the two men.

It was further testified by two witnesses, that, since the murder, the distance from Butler's residence to the point (Summit) where Walker was seen after the murder, had been ridden on horseback, by a man weighing one hundred and sixty-five pounds, in twenty minutes by the watch, and that the horse on which the ride was made was not a race-horse, but one that had been used as a cow-pony.

Walker and Black, though severing on the trial, joined in an affidavit for a change of venue, which alleged that there existed in Galveston county, where the prosecution was pending, so great a prejudice against them that they could not obtain a fair and impartial trial. This was supported by the affidavits of three persons, as required by the statute. The State then filed the affidavits of forty-nine persons, who swore that they were satisfied there existed no such prejudice against the defendants as to prevent their obtaining a fair and impartial trial. The affidavits for the State, as well as for the defense, were to the effect that affiants were acquainted with public sentiment on the subject in Galveston county; but no effort of a direct character to attack the credibility of the parties who made the affidavits for defendants was made, nor did any of them making counter-affidavits swear positively to the absence of such prejudice as would prevent a fair trial.

Verdict of “Guilty of murder in the first degree, and penalty affixed as death.”

Willie & Cleveland and Arthur W. Andrews, for appellant, insisted:

First. That the counter-affidavits did not negative the existence of great prejudice as a fact.

Second. That the court erred in requiring that the evidence of an alibi should be convincing to the mind of its truth before an acquittal could be had, if the State's evidence had made out the case, citing Dorsey v. The State, 34 Texas, 658; French v. The State, 12 Indiana, 673; Pilkinton v. The State, 19 Texas, 214.

Third. That the court erred in instructing the jury that if the statements made by deceased were made in conformity with the rules given in the charge, they were “worthy of the same weight as other evidence,” as charging on the credibility of a witness, and upon the weight of evidence; citing Lambeth v. The State, 1 Cushman, 358; 17 Illinois, 17; 1 Greenleaf on Evidence, Sections 160, 161, 162; 2 Starkie on Evidence, 366, 367.

Fourth. That the charge assumed, as true, facts the jury should have found, citing Kimbro v. Hamilton, 28 Texas, 566;Andrews v. Marshall, 26 Texas, 215;Blankenship v. Douglass, 26 Texas, 228, 229;Cobb v. Beall, 1 Texas, 346, 347;White v. The State, 13 Texas, 133;Brown v. The State, 23 Texas, 202.

M. C. McLemore, for the State, contended:

First. That there was no error in refusing to change the venue, Winkfield v. State, and Cotton v. The State, 32 Texas.

Second. That the charge, on the whole, was as favorable to defendant as the facts would allow, and the mere fact of any particular part not conforming to law in the abstract, affords no reason why the court should reverse, citing Henderson v. The State, 12 Texas, 531;Robinson v. The State, 15 Texas, 311;O'Connell v. The State, 18 Texas, 343;Monroe v. The State, 23 Texas, 216;Daniels v. The State, 24 Texas, 389;Johnson v. State, 27 Texas, 766.--Continuing--

The truth is, as shown by the record, that the jury were obliged to convict Andrew Walker unless they believed that Mrs. Butler, Joe White, and Effie Lewis were deliberate perjurers, because they each swore that Green Butler told them (whilst perfectly sane, and they stated how they knew he was sane to the satisfaction of the court and jury) that Andrew Walker had killed him, and they testified as to the manner of the killing, as they saw it themselves. Unless, forsooth, it be argued that Green Butler went from this world into eternity with a falsehood on his lips, because it is not possible, under the proof, that he was mistaken. And then, to talk about a charge on the weight of that evidence, as having anything to do with the verdict, and that, too, when the...