Young v. State

• Decision Date: 24 January 1906
• Citation: 92 S.W. 841
• Parties: YOUNG v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W. 841

YOUNG v. STATE.

Court of Criminal Appeals of Texas.

January 24, 1906.

Rehearing Denied February 14, 1906.

Appeal from District Court, Williamson County; V. L. Brooks, Judge.

Tom Young, alias Jack Wade, was convicted of murder in the first degree, and he appeals. Affirmed.

Sandbo & Shelton and J. F. Taulbee, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

The facts in substance show, that deceased, who was a girl 16 or 17 years of age, at the instance of her mother, or on account of mistreatment on the part of her mother, decided to live with appellant and his wife. The indictment charges that appellant did unlawfully kill deceased by beating, bruising, and wounding her with a blacksnake whip, and stick, and a hoe, and a hoe handle, and a rock, and a plank, and a board. and a rope, and by kicking her with his foot, and by stamping her with his foot, and by choking her with his hands. These allegations are amply proved by the evidence; and the facts show a systematic and continued infliction of unprecedented cruelty towards a helpless girl on the part of appellant. The extent of the cruelties were such that finally there was scarcely a place on her body that did not evidence either a scar or a sore. The beating commenced in Falls and Bell counties, and terminated at a little village called Florence, in Williamson county. At Florence deceased was taken in charge by some kindly neighbors, and appellant was arrested. A short while after this, deceased died from the wounds so cruelly and systematically inflicted by appellant.

Bill of exceptions No. 1 shows that when May Benton Young was placed upon the stand by the state, defendant's counsel requested the court to have the jury retired, for the reason they had objections to said witness testifying which they wished and thought it proper the court should hear and determine out of the presence of the jury. During the absence of the jury said May Benton Young testified that she had been married to defendant on March 13, 1903, but that defendant subsequently told her that prior to said date he had another living wife. Thereupon witnesses Mrs. Peter Bedell, Maud Nixon Young, and Houston P. Young testified to the marriage of appellant to Maud Nixon Young. White, the justice of the peace, who married Maud Nixon Young to appellant also testified to said facts, and in addition to this, the marriage license was introduced. The objection of appellant to this testimony was, because the theory of the state is that this woman is the wife of defendant. The court thereupon stated that he would hear the evidence as to who was the defendant's wife, and would exclude from the consideration of the jury any evidence that was not admissible. The bill of exceptions presenting this matter shows that Maud Nixon Young was never divorced from appellant at all; and therefore, in contemplation of law, May Benton Young, with whom he was living at the time of the homicide was not in law his wife. The evidence is ample to support this proposition, outside of the testimony of Maud Nixon Young, his first wife. Furthermore, all of this testimony was introduced to the court in the absence of the jury, and was never introduced before the jury and even conceding appellant's contention, that Maud Nixon Young was his wife and testified to the fact of her marriage with him, because said statement would be a fact in the evidence tending to incriminate appellant, would not be well taken, since the predicate showing that Maud Nixon Young was the wife of appellant and not May Benton Young, is doubly established by the testimony as disclosed by this bill. Therefore, we hold that the court did not err in permitting May Benton Young to testify; and we further hold that the mere fact that Maud Nixon Young testified before the court, in the absence of the jury, on the question of the first marriage, would not be reversible error, even conceding that said fact was error. However, this question was decided against appellant's contention in Moore v. State (Tex. Cr. App.) 75 S. W. 497, 67 L. R. A. 499.

Bill No. 2 shows that while May Benton Young, the supposed second wife of appellant, was testifying, the following question was asked by defendant: "Up to the time you were arrested and brought down here in regard to this matter, I will ask if you did not believe youself to be the wife of defendant, and if the relations between yourself and the defendant were not as man and wife, and that you lived and cohabited together, and that you had a child by him, and if your relations were not of that confidential nature as exist between a man and his wife, up to the time you were both arrested charged with this offense?" To which question, the witness answered, "Yes, sir." Thereupon defendant objected to the witness testifying against defendant, because at the time of the commission of the alleged offense, the witness was the wife of defendant, living with him as his wife, and believing herself to be legally married to him; and that the confidential relations existing between herself and the defendant were such as exist between a man and wife. The court overruled said objections. Thereupon the witness testified that defendant whipped deceased with a hoe handle, with a blacksnake whip, and a plank. In discussing the first bill, we held that May Benton Young was not the wife of appellant, since at that time he had a wife living, to whom he had been legally married, in Travis county. It follows that the second marriage was an illegal marriage, and however confidential the relationship may have been between appellant and May Benton Young, and however much she may have regarded him as her husband, yet this could not prevent the state proving that she knew about a crime appellant committed, as, in contemplation of law, she was not his wife.

Bill No. 3 shows that the state asked May Benton Young, the following questions: "Q. Where did you go? A. After we left with the girl we came on from Killeen, and from there to Temple, and then to Belton, and from there to Mr. Berry's farm. Q. Now did anything unusual or out of the way take place? A. Yes, sir. Q. Where was it that it took place? A. This side of Killeen." This bill is defective, in that it does not state what was said took place. Appellant's objection is that he objected to anything occurring in Bell county, or outside of Williamson county. The witness does not testify to anything against appellant, except that something unusual occurred.

Bill No. 4 shows that appellant objected to certain testimony introduced by the state through the witness May Benton Young, on the ground that they objected to the same, unless the matters inquired about occurred in Williamson county, but the bill does not show that anything occurred. Therefore, we cannot review this matter.

By bill No. 5 it is shown that May Benton Young was asked by the state: "You have said that on one or more occasions you went to the wagon and got the whip and took it to defendant, and that he whipped deceased? A. Yes, sir. Q. Why did you do that? A. He told me to. Q. I will ask you to state if in anything and everything you did and took part in, in carrying things to him with which he whipped deceased, you had any desire or intent to have her injured." Appellant objected to anything that witness might have thought or feared from defendant, which objection was overruled by the court. Witness answered: "No, sir; I did not want her hurt. I did it because I was afraid not to. I was afraid because he had beat and whipped me." This bill is allowed with this explanation "that the other evidence in the case recited the issue of whether or not witness May Benton was an accomplice of the defendant." We see no legal objection to this testimony.

The eighth bill complains that the court erred in refusing to permit appellant to ask May Benton Young the following: "I will ask you...