Willman v. State , 99 Tex. Crim. 259 ( 1924 )

Appellant was convicted in the district court of Hamilton county of murder, and his punishment fixed at sixty-five years in the penitentiary.

This is the third time this case has been before us. Appellant and two others were charged with the murder of Jack McCurdy in Comanche county, Texas, in 1921. The parties charged were tried separately thereafter and convicted and all the cases upon appeal were reversed. See 242 S.W. Rep., 739, 746, 749. The parties were again tried, convicted and upon appeal the cases were again reversed. See 252 S.W. Rep., 543.

We have gone over the various errors assigned relating to the rejection of special charges and argument of counsel and each other matter complained of, as carefully as we can and, without setting same out or discussing them at length, are of opinion that none of them present any reversible error. The chief contention made on this appeal is that the evidence does not sufficiently support the verdict. This matter has been considered each time the cases have been before us. The facts have been substantially the same on each trial. Upon the last appeal, above referred to, the Presiding Judge of this court, speaking for the court, states: "The record supports the finding by the jury from evidence independent of that of Henry of certain circumstances which are relied upon to corroborate." The court then sets out at length a number of such corroborative circumstances. In summing up this feature of the case we said in that opinion:

"No effort has been made to state all of the testimony, nor to particularize all of the facts relied upon as corroborative of Henry. While many of the circumstances are controverted, the truth of them was for the jury, and if found to be true, they may reveal facts independent of the testimony of Henry, sufficient to support the jury's finding that they tended to connect the appellant with the commission of the offense."

The facts in these cases have been separately reviewed by the different members of this court upon the various appeals and no great good could be accomplished by restating them. According to the testimony of the accomplice, Henry, the deceased was killed at the home of this appellant by one Ed Walker, who with appellant, was holding deceased at the time. Said witness testified in detail to the manner of the killing and to the fact that thereafter the body was placed upon a horse upon which Ed Walker rode and beside which appellant rode on another horse and that they thus carried the body to a point near the track of the Fort Worth Rio Grande Railroad, upon which it was deposited by the joint efforts of appellant, Walker, Howard and witness. Witness also detailed the manner in which he and deceased had gone to the home of appellant on that night and stated that he returned from the home of appellant to his own home after the homicide and after the body was disposed of. He denied taking any active part in the killing of deceased, and claimed that he tried to make his escape from the place after deceased was assaulted and striken down, and averred that he was shot at by Howard and that a woman screamed at the house about the time of the shooting. The tracks of deceased and accomplice Witness Henry were observed going from Henry's house to appellant's house, and the tracks of two horses going side by side, were found going from appellant's house to a point near the railroad track. The track of Henry alone was also discovered going back from appellant's house to the home of Henry. About dark on the evening of the homicide a shot and a scream of a woman were heard by parties who lived in a general westerly direction from appellant and Henry. Said parties were of opinion at the time that the shot and sound came from the direction of the home of witness Henry which lay east of south from them. Appellant's home was south of east from the same place. Other circumstances appear in evidence which are set out somewhat in detail in the case of Walker v. State, reported in 252 S.W. Rep., above referred to. The matter has been in our books quite often, and for further statement of the facts reference is made to the former appeals. We have carefully weighed and analyzed, as best we can, the facts in evidence relied on as tending to corroborate the testimony of the accomplice, Henry, and we are not willing to hold that the evidence is insufficient to justify the jury in concluding that the accomplice was legally corroborated.

This being the chief question before us, and being unable to agree with appellant's contention in such regard, an affirmance will be ordered.

Affirmed.

ON MOTION FOR REHEARING.