Williams v. State

• Decision Date: 16 November 1910
• Citation: 132 S.W. 345
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 345

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

November 16, 1910.

Rehearing Denied December 7, 1910.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Eugene Williams was convicted of murder, and he appeals. Affirmed.

J. Holmes Anderson and Nat Llewellyn, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for the murder of George Willie McGill, alias Ab McGill, and awarded a life sentence in the penitentiary.

The state's case, in brief, is that appellant and his wife had been hired by W. C. Kirkpatrick as cotton pickers. They occupied and slept in a room of a house occupied by another negro named Burton. Appellant was a poor man, and had nothing in the way of finances when Kirkpatrick employed him. Kirkpatrick had to supply him with bedding and necessary matters before appellant would agree to work for him. Nearly all of the money arising from the cotton picked by appellant and his wife was used in paying for the bedding and such things as appellant needed. The deceased, McGill, was also in the employ of Kirkpatrick, and had been for some time. He occupied a different house from that occupied by appellant and his wife, and Burton. McGill's death was brought about by some one striking him on the head with an axe and inflicting a wound upon his neck with some sharp instrument. The case is one of circumstantial evidence.

1. The first bill of exceptions suggests error on the part of the court in failing to submit the issue of alibi. This proposition is based upon an alleged statement of the defendant that he told the witness Burton that he was off down the road about a mile and a half or two miles from said place near a house of a man named Richardson on the road to Chilton. An examination of the record, we think, would barely suggest the issue of alibi, even on this statement as contained in the bill. The court not only charged fully in regard to the law of circumstantial evidence, but gave several requested instructions in almost every conceivable form, applying the law of circumstantial evidence to particular facts and combination of facts. Appellant presented this question in many ways. The testimony is so cogently overwhelming, in our judgment, that appellant was not at Richardson's, but was immediately at the place where the homicide occurred, that it was unnecessary, in view of the charges given, for the court to have charged on alibi, and that there was no error in failing to do so. It may be stated, in this connection, that appellant's statement as given does not show at the time of the killing that he was at Richardson's. The statement is general that he was there that night. There was no charge requested by appellant. The testimony is so indefinite in regard to his absence at the time of the homicide that the error, if any was committed by the court in this respect, is not of sufficient importance to require us to reverse the judgment for that reason.

2. The court refused two special requested instructions with reference to the law of circumstantial evidence. This phase of the law was not only given by the court, but several special requested instructions by appellant were given. These submit that issue in every conceivable form, it occurs to us, that could possibly be applicable to the case; and besides, the refused charges asked were on the weight of evidence. The first one, for instance, is as follows: "The court further instructs the jury that when upon a charge of murder the evidence is wholly circumstantial, as in the case here, the absence of all evidence of an inducing cause or motive to commit the offense charged affords of itself a strong presumption of innocence." The second charge requested, which was refused, is as follows: "The court instructs the jury that if, upon the whole evidence in the case, there is any reasonable hypothesis consistent with the innocence of the accused, they must find him not guilty. The court instructs the jury that the failure of the evidence to disclose any other criminal agent than the accused is not a circumstance which may be considered by the jury in determining whether or not he was guilty of the crime wherewith he is charged," etc. The court had given, as before stated, charges on circumstantial evidence favorable to the defendant, so much so that some of them might be considered as being on the weight of evidence. The quoted charges above, it occurs to us, would be subject to the criticism that it was a charge upon the weight of evidence. If not on the weight of the evidence, inasmuch as the court had given several instructions requested by appellant and had himself charged fully upon that phase of the law, there was no error in refusing these charges.

3. There are several bills of exception reserved to the ruling of the court permitting evidence to the effect that the hair found on the axe, which was supposed to have been used in the homicide, was negro hair. Without going into these bills of exception and collating the testimony upon this issue, we are of opinion there was no error in this. The witnesses swear positively that it was negro hair. They knew negro hair and knew that it was negro hair. They show a thorough familiarity with such hair as they called "negro hair" such as was found upon the axe, and it was uncontroverted that this character of hair was on the axe. This testimony was clearly admissible.

4. There are bills of exception reserved to the admission of the testimony in regard to the appearance of the axe as to blood stains upon it when it was found. By way of illustration, it is sufficient, perhaps, to call attention to the testimony of only one witness. This witness was Kirkpatrick. He states the morning after the killing he saw an axe; that there were a large crowd present who were examining it. Blackburn found it under the negro room; it was bloody for about six or seven inches up the handle, and it had negro hair, blood and brains on it. "I saw the axe. It was bloody for about six or seven inches up the handle, and it had negro hair, blood and brains on it. It was negro hair on that axe, and brains. There was dirt on the axe. It looked like he had tried to get the blood off." Several objections were urged to this testimony. The court qualifies the bill by stating: "The witness testified that Blackburn found the axe. Blackburn testified that he found the axe, and there was no controversy on that point, and the witness Blackburn testified that he did not change the axe in any way, but as soon as he found it he took it to where the crowd was (where Kirkpatrick placed himself) in the same condition as when he found it and described the axe when he found it just as Kirkpatrick did. The witness stated that the hair on the axe was negro hair and was kinky hair." The objection to this was that witness was not present when the axe was found, and it was hearsay and there was no evidence to show that the axe had not been handled by other people, and its condition changed after having been found, and that the statement of the witness that there was brains on the axe was a conclusion, he not having been qualified as an expert, and that his statement that it was negro hair was an expression of his opinion without having qualified as an expert. These are but grounds of exception, and are not verified in any way by the court as being true, and are not shown in the bill to be facts, nor are they stated as facts, but simply as grounds of objection. None of these objections are well taken and as shown in bill of exceptions as qualified by the judge, the witness could testify to the matters stated, and in looking at the evidence we find that the axe was fully identified as the axe found by Blackburn and as stated by the judge. The witness could state, under the circumstances detailed, that the hair on the axe was negro hair. He could also state the condition of the axe and that there was blood and brains on it.

5. There is also evidence introduced showing that an attempt had been made to wipe the blood from the axe. This is here stated generally as the substance of statements of the witnesses, but there was quite a lot of testimony introduced on this line. This, we think, was clearly admissible. The witnesses saw the axe, and it indicated that it had been wiped with a view of getting the blood from it. It did not take an expert to testify in regard to this matter. It was the appearance of the axe, and it is, under our authorities, not to be considered as expert testimony, but rather as a shorthand rendering of the facts. It is just one of those things that is almost impossible to describe by giving the facts other than as was stated. These witnesses testified in substance that it looked like the axe had been wiped on something after it had been used with a view of wiping the blood from it. This testimony was admissible.

6. Bill of exceptions No. 6 recites that when the jurors Moore and Schmidecamp and Chas. Hinkle were on the stand being examined on their voir dire, each stated they were prejudiced against a negro and could not give him the same fair and impartial trial they could a white man under the same facts and circumstances. On this statement of the jurors they were by the defendant challenged for cause, and on further examination by the county attorney they stated while they were prejudiced against negroes, that in their opinion when there was a negro being tried for the murder of another negro they believed they could give him a fair and impartial trial. On these statements of the jurors the appellant challenged each of them for cause, but the challenges were overruled, and appellant excepted on the ground that the jurors were prejudiced...