Conviction for murder; punishment, death.
The facts amply support the verdict. They are almost without contradiction. Mr. Guy, deceased, a man sixty-eight years of age, lived alone near Edgewood, Texas, which is in Van Zandt county. He disappeared from his home on the night of June 1, 1933, and was last seen alive about 11:30 that night in a car with another man, — said by a witness who saw them to answer the general description of appellant, — going east along the highway toward Mineola, which is in Wood county, and near which place appellant lived in a tent with a woman who testified in this case. She appears to have been the mother of a baby by appellant, and her story, pieced out with other testimony, shows a revolting murder, — solely for the purpose of theft or robbery. There is no need to set out the gruesome details. The decomposed body of deceased was found some time later buried in a crude grave in Wood county near the place where appellant and said woman had been camped. The pistols of the deceased and his car were traced to appellant's possession after deceased disappeared.
Six bills of exception appear in the record. Bill 1 complains of testimony of a bank officer who testified that deceased kept considerable money in his bank at Edgewood. This witness said deceased drew out of his bank $250.00 in ten dollar bills shortly before he disappeared; also that nearly every year his bank gave its customers purses. The qualification to this bill by the court below states that deceased had a purse such as the bank gave away, which was found in appellant's possession when arrested for this crime, and was identified by a son of deceased; also that a witness swore that he saw appellant with a large roll of bills the morning after the alleged homicide. The bill shows no error.
The body of deceased when found was badly decomposed. *Page 243 Among other facts of identification, Dr. Brandon, who had treated deceased for a gun shot wound in the lower leg, testified that an x-ray made of his patient showed a hole through the bone corresponding with a hole in the lower leg bone of the corpse referred to, and in his judgment they were the same. We think the evidence was properly admitted.
The next bill of exceptions complains of the refusal of the court to charge the jury that Ruth Mann, the woman with whom appellant had been living, was an accomplice as a matter of law. There is no claim that this woman was either a principal or accomplice to the killing, — but that by reason of her association with appellant afterward, her acceptance of money, etc., resulting from the sale of the pistols, etc., of deceased, and that she had made false statements interpreted as aiding appellant to evade arrest and prosecution, she was an accessory, and when a witness, an accomplice witness. The false statements were that she had given the authorities of Van Zandt county a written statement in which she claimed that appellant was at the tent with her on the night of the homicide, — a proposition which she reiterated and repeated from the witness stand on this trial, saying that he was with her that night. She testified that sometime in the night, before daylight, appellant came to the tent where she was sleeping and wanted the wagon sheet which was under the mattress on which she lay, and that when she did not at once give it to him, he threatened to shoot her with a pistol. She said he just "hunkered down" by the bed. She gave him the wagon sheet. The written statement about which she was cross-examined, as above stated, and also as hereinafter later mentioned, was not put in evidence and is not before us, hence we can not know what she said therein, nor the words in which she phrased her statement that appellant was with her that night, etc.
She was also cross-examined as to having said, in said written statement, that Bob Lockridge came with appellant in the car at the time the body of deceased was brought to where is was buried, and that he helped appellant bury it. This statement she admitted on the trial was false insofar as Lockridge's participation in the bringing of the body and its burial. She said she had so stated because appellant told her to. It is not quite clear how the fact that she may have said another man came with appellant at said time and helped him to bury the body, would exculpate appellant or negative his guilt, but be that as it may, the writer has grave doubt of the *Page 244 sufficiency of the testimony of this unfortunate ignorant woman, — living with appellant who was the father of her baby, and going away with him after the killing and staying with him, sharing what he had, and making the statement shown to have been made by her, — to show that she was an accomplice as a matter of law. Sec. 712 of Branch's Annotated P. C. cites many cases as supporting two propositions which shed light on the question raised by this bill of exceptions: We quote: "When there is no doubt that the inculpatory witness is an accomplice, the court should charge the jury peremptorily that such witness is an accomplice." Armstrong v. State,33 Tex. Crim. 423, and others are cited by Mr. Branch. Then follows this proposition: "It is not always reversible error to leave it to the jury to determine whether a witness is an accomplice, although such fact be apparent." Zollicoffer v. State, 16 Texas App., 317, and others are cited in support of this proposition. In Elizando v. State, 31 Tex. Crim. 237, this court, — Judge Davidson speaking, — says:
"But in the next place, if it be conceded that the facts adduced raise such an issue in connection with her testimony, still it would not be incumbent upon the court to charge, in affirmative terms, that she was an accomplice.
"It was sufficient to submit that question to the jury as a question of fact to be determined by them, which was done. In cases where that fact is not admitted, or placed beyond doubt, it is not improper to submit such question, under appropriate instructions to the jury, to be determined by them. Zollicoffer v. State, 16 Texas Ct. App. 312[16 Tex. Crim. 312]; White v. State, 30 Texas Ct. App. 653[30 Tex. Crim. 653]."
This language is quoted and approved in Vails v. State,59 Tex. Crim. 342; Standfield v. State, 84 Tex. Crim. 446; Sims v. State, 95 Tex.Crim. Rep., and others.
Bohannon v. State, 84 Tex.Crim. Rep., was reversed on its facts for failure to tell the jury that the prosecuting witness was an accomplice. In differentiating that case, Judge Morrow says: "There are cases in which it has been decided that the fact that the court submitted to the jury the question as to whether a witness was or was not an accomplice was not reversible error, even though the evidence was such as to justify a charge that he was an accomplice as a matter of law. In these cases it will be found that there were facts proved or in evidence which would have authorized the jury to have concluded that the witness, if an accomplice, was sufficiently corroborated. These cases are distinguishable *Page 245 from this one by reason of the fact that here, if the jury determined that the prosecutrix was an accomplice, there is an absence of sufficient corroborating testimony to support the verdict. In other words, in this case, if the jury determined, in response to the charge, that the prosecutrix was not an accomplice, their finding could be supported alone upon evidence which was illegally admitted. If they found that she was an accomplice, the verdict could not stand because the evidence of corroboration was insufficient." This case is cited on this point with approval in Lopez v. State, 92 Tex. Crim. 98. It seems very plain that the instant case belongs in the category with the Elizando, et al. cases mentioned and not in that of the Bohannon case, for in the instant case the corroboration was overwhelming, — in fact so much so as to make it probably sufficient to convict without the testimony of the alleged accomplice. In this case the court submitted to the jury the question as to whether or not said woman was an accomplice, in language apparently acceptable to the accused. Nothing in the cases of Littles v. State, 14 S.W.2d 853, or Turner v. State, 37 S.W.2d 747, or any other case known to the writer, contravenes the doctrine so announced. This bill manifests no error.
Bill 5 complains of the failure of the court to charge on circumstantial evidence. The woman, Ruth Mann, testified that appellant told her he killed deceased, and described to her the manner in which he did so. This would remove the case from the domain of circumstantial evidence. Heard v. State, 24 Texas App., 111; Hedrick v. State, 40 Tex.Crim. Rep.; Thompson v. State, 33 Tex.Crim. Rep.; Kidwell v. State,35 Tex. Crim. 267.
Bill 7 sets out part of the testimony of Ruth Mann, the alleged accomplice witness, and avers that the charge of the court was excepted to because it "Nowhere instructs the jury upon the issue that if Ruth Mann is the common law wife of defendant, she is incompetent to testify against him." We find no bill of exceptions in the record complaining of the admission of the testimony of this witness on the ground that she was the wife of the accused. Her testimony covers some twenty-three pages of the statement of facts, and is bare of any reference to any marriage agreement between herself and appellant, but on the contrary abounds in references to his promises to marry her, and her expectation that he would marry her, which promises he did not carry out; *Page 246 and she testifies in so many words that she knew all the time she was not married to him. She further testified that she had never had a husband; had never considered that she had ever been married. She further said appellant came to see her one day and asked her how she would like to live at Edgewood, and she said she did not know. He said nothing else, but later that day he told her to have everything packed up and he would be after her in a few days, and that was the condition on which she started to living with him. We think the learned trial judge well within his rights in not responding to appellant's exception, and in not charging on the subject. No special charge was asked in regard to this question.
No issue was made in testimony during the trial on the question of venue. As above stated, the last time deceased was seen alive he was in a car with a man who in a way resembled appellant, leaving the town of Edgewood in Van Zandt county, Texas, on a highway and going toward Mineola in Wood county, Texas, near where appellant lived, and where the body of deceased was later found. At the conclusion of the testimony appellant presented a special charge to the court asking that the jury be instructed to acquit if they found the homicide was committed in Van Zandt county, or if they had a reasonable doubt thereof, which was refused, but no exception was taken to such refusal, and the point was not brought forward in any separate bill. Art. 847, C. C. P., in so many words requires this court on appeal to presume that the venue was proven in the court below, unless it was made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions approved by the judge of the court below. This we take to mean that unless the evidence affirmatively shows venue elsewhere, it will be presumed to have been in the county where laid. In Sherman v. State, 83 Tex.Crim. Rep.; Bashara v. State, 84 Tex.Crim. Rep.; Bargas v. State,86 Tex. Crim. 217, and Cone v. State, 89 Tex.Crim. Rep., we laid down the rule that upon appeal it will be presumed that venue was proved unless it was a question of serious import upon the trial, or unless contested or verified in a bill of exceptions. In McGlasson v. State, 38 Tex.Crim. Rep., this court said that on appeal we will presume venue was proved unless the contrary is shown by the record. In Park v. State, 78 Tex.Crim. Rep., we said we would not consider the question of venue as raised where no bill of exceptions was *Page 247 taken. See Ex parte Haley, 88 Tex.Crim. Rep.; Hibbitt v. State, 90 Tex.Crim. Rep., and Hughes v. State,91 Tex. Crim. 642, in which we said that where no issue was made during the development of the testimony touching venue, the Court of Criminal Appeals will presume that it was proved, in the absence of a bill of exceptions. In Tullos v. State,99 Tex. Crim. 551, we said that under Art. 847, supra, lack of evidence showing venue which was raised for the first time in motion for new trial and not made during the trial of the case, will not be considered on appeal.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.