Appellant was convicted of the murder of Mrs. Dorathea Fischbeck, his mother-in-law, and given twenty years in the penitentiary.
The case is one purely of circumstantial evidence There are quite a number of bills of exception reserved to the rulings of the court. We have not entered into a discussion of these under the view we take of the sufficiency of the evidence. The proposition with reference to the sufficiency of the evidence as applied to cases of circumstantial evidence is so well settled by so many decisions it is useless to discuss the legal aspect further than to state the evidence must be sufficiently strong to exclude every reasonable hypothesis except the guilt of the accused. Motive is not always necessary, yet if existent is a circumstance to be considered by the jury in connection with the other facts. The cogency of the motive is to be determined also by the evidence. If there be motive in this case it is found under the following statement: Appellant had bought from Mr. Fischbeck during his lifetime a tract of land for which he gave his note for $11,000 as unpaid purchase money. This was due in January after the homicide on the 5th of December. Mr. Fischbeck had died in June before the homicide of his widow in December. The contention of the State is that appellant was anticipating trouble with his mother-in-law, who was left the sole heir by the will of her deceased husband; that he might be pressed by her on account of the unpaid purchase price. Evidence was introduced that something like six weeks prior to the homicide appellant and his wife visited Mrs. Fischbeck, and there were conversations between Mrs. Wilkie, wife of defendant, and her mother, Mrs. Fischbeck, in which appellant did not directly engage; that his wife would talk to her husband, and then to her mother not in the presence of each other, but these matters seemed to have been settled, and appellant and his wife remained at the residence of Mrs. Fischbeck at least one night, and their relations seemed to be pleasant. So far as the record shows there was nothing to break this pleasantness after this visit; also this was the last visit that appellant and his wife paid to his mother-in-law, the deceased. There is but little, if any, evidence, that would seem to justify the conclusion that Mrs. Fischbeck, deceased, intended to press her son-in-law for this money. On the evening prior to the homicide at night appellant and a Mexican left his home in the edge of Caldwell County and went to the village *Page 492 of Martindale, reaching there about sunset, and from there they went to another village called Limerock. He and the Mexican, Pena, were in a hack. The evidence is not clear as to the exact time the parties left Limerock, but the preponderance of the evidence indicates it was about or later than 9 o'clock. Some of the evidence is positive that it was about 9:30 o'clock. It was about three miles from Limerock to the point where it is claimed appellant got out of the hack, the scene of the homicide being something like one-half mile from where the hack is supposed to have stopped. The killing occurred along about 9:30, at least between 9 and 10 o'clock. It had been raining, and the country was black land and muddy. There are a great many statements by the Mexican, Pena, who subsequently turned State's evidence, or at least testified for the State, to the effect that appellant did not have a gun in the hack with him, and that on their return home from Limerock they did not stop at any point. These statements of the Mexican were reiterated to different people and officers. Subsequently, however, for some reason, he changed his testimony and on the trial testified that he and appellant did stop the hack; that appellant got out and for the first time he saw a gun which appellant got out of the bottom of the hack and go away; that he was gone a while and returned. There is other testimony showing appellant did not have a gun in the hack, and also testimony by his wife and daughter to the effect that he owned but one gun and that it remained at home and his wife used it in hunting that evening. From this point on the State's case hangs mainly around tracks. From where the hack is supposed to have stopped to the place of the homicide no foot tracks were found until within a short distance of the residence of Jechow, where Mrs. Fischbeck was shot. Near that house was found the next morning barefoot tracks. Appellant was wearing shoes. These barefoot tracks went close to the house and left in a different direction from their approach. After leaving the house these tracks crossed a lane and muddy low place, going in the direction of where Mexicans resided. The tracks seemed to have been lost at this point. Barefoot tracks resembling those found near the residence of Jechow were later found some seven or eight hundred yards from the scene of the homicide inside on the farm of a Mr. Bauerschlag. These tracks went within a short distance of the gate of Mr. Bauerschlag and were lost. There were no measurements of the tracks, and no measurements of defendant's foot, and the only testimony that indicates it might have been the bare foot of appellant was that the tracks indicated a large foot and that appellant wore about a No. 9 or 10 shoe. There is evidence that at a certain wire fence someone went through the fence and evidently got on the ground with one knee. There was a hole found in the ground on the opposite side from where the party was getting through the fence. The State relied upon this hole as one of the circumstances against appellant because the gun had mud on it. Witnesses testified this hole might have been made by a gun or stick, or anything of that sort that could have made such a hole. What time *Page 493 appellant reached home that night is not clear, but about 2 o'clock parties went to appellant's house and arrested him and the Mexican. At the time they reached appellant's home he was hitching his team to the hack to take his wife and daughter to the scene of the death of his mother-in-law, he having been advised of her death over the phone. Appellant and the Mexican had no way of communicating with each other after the arrest that night out of the hearing of the officers. They were taken prisoners and kept prisoners from that time. They were in the custody of the officers, and were carried that night to the scene of the homicide and thence to jail. Appellant's wife and daughter testified that he did not have his gun with him on this occasion, and that his wife used it in shooting birds that evening and got a little mud on it. The officers testified that on the barrel of the gun they found a small quantity of mud or black dirt.
We are of opinion that this evidence does not show, under the rules of circumstantial evidence, that appellant and no one else killed deceased. Whoever did the killing the facts show that they did it by going to the house and making a noise which attracted the attention of those inside, who were deceased, Jechow and his wife, the youngest daughter of deceased, at whose house she was waiting for the return of her two sons, who lived with her in her residence something like one hundred or more yards away. It would hardly be questioned under the circumstances stated that the party who shot Mrs. Fischbeck was guilty of a cold-blooded assassination. She was an elderly lady, and when she went to the door was shot to death by an assassin from the outside. The jury evidently more than seriously questioned the guilt of the defendant else this verdict for twenty years would scarcely have been rendered. This evidence does not exclude every reasonable hypothesis except the guilt of the defendant. Outside of the witness Pena's testimony there is nothing to show that appellant had a gun, and Pena denied this fact for quite a while after being placed in jail. Other witnesses testified, who seemed to have noticed the hack, that appellant did not have a gun with him that evening. His wife and daughter also testified that he did not have a gun. If appellant left the hack with the Mexican and went away half a mile to the scene of the homicide, the land being black and muddy, he could have been traced, or ought to have been traced by foot tracks. He was wearing shoes. There is nothing to indicate that he got rid of these shoes and became barefooted, or when he again placed those shoes on his feet. If he left the hack with the shoes on he had to get rid of them at some point before reaching the house where the homicide was committed, if he fired the shot. There is no attempt to account for this by any fact or circumstance. The Mexican does not attempt to account for it, and no physical facts on the ground are put in evidence in this connection. In fact, the tracks were only seen near the house where the homicide occurred going to and from it barefooted. The fact the party getting through the fence got on his knee in going through and there was a hole found that *Page 494 indicated it might have been made by a gun or a stick might be a circumstance, if connected properly. The fact that there was a hole made in the ground would not indicate that defendant made it, nor that a gun made it. To say that that hole in the ground was made by a gun would be but a presumption, and to say that it was appellant's gun would be another presumption without basis. One presumption based upon another presumption and both presumptions based upon facts that are hardly tangible ought not to form the basis of a link in a chain of circumstances. Presumptions can not form basis for other presumptions. There is another fact that could have been proved if true, and no reason is assigned why it was not proved. The party who went to the house unmistakably and unquestionably went through black muddy soil, and on leaving through a lane and a low place where mud was soft and something like knee deep. The party who made those tracks and went through these muddy places evidently carried some of the mud away on his person and clothes. This record is silent with reference to that matter. Appellant was arrested about 2 o'clock that night. There was no attempt at any time to investigate his clothes as to this matter. There was nothing to indicate that there was mud on his clothes, and no account given why this phase of the case was not investigated. It was one of the most, if not the most, important of the facts connected with the tracing of the guilty party. There was no attempt, so far as this record goes, to show from any source whether or not appellant's clothes were muddy, or his feet were muddy, or his shoes were muddy, or that he was in any way shown to have been in position to have made the tracks and gone through the mud that the assassin evidently and necessarily did. The record is very voluminous, and deals a great deal in matters unnecessarily prolix, but the salient features are about as stated. We are not satisfied that this evidence excludes every reasonable hypothesis except defendant's guilt, and especially in view of the fact that existing facts shown by this record could have been proved or accounted for in some way that would have tended to identify the guilty party. It might be suggested in this connection also that so far as motive is concerned one of deceased's sons might be equally charged with motive. He had forged her name to a check, and she had stopped its payment and ordered the bank not to accept any more checks unless she signed them. This son is shown by this record to be a fugitive from justice. It may be that he was not running from guilt with reference to this matter. It is also shown that this son employed two Mexicans to kill appellant subsequent to the death of his mother. They undertook it. Appellant killed one of them, and the other went to the penitentiary, and the son got out of jail and became a fugitive.
There is another circumstance which tends to weaken the State's case, and it is this: The evidence shows that appellant had not visited his mother-in-law's residence since some time in October, about six weeks or such matter prior to the homicide, and the evidence fails to show that he was aware of her habits and custom at night when her sons *Page 495 were away from home, two of whom lived with her at her home. It is not shown that he knew that his mother-in-law was not at home that night but at her son-in-law's, Jechow. The assassin must have had some knowledge of these facts because there is nothing to indicate that the slayer went to her residence but that he went direct to Jechow's residence. Take the case as it stands, we are not satisfied to affirm this judgment on this testimony, and especially in view of the fact that many things could have been proved if they applied to defendant which were not proved. Some of them have been mentioned. It is thought unnecessary to go further into detail.
Because the verdict is not supported under the rules of circumstantial evidence this judgment will be reversed and the cause remanded.
Reversed and remanded.