Walker and Howard v. State

Appellants insist that there was prejudicial error in failing to charge on the issue of manslaughter. In their testimony the appellants denied any connection with the homicide. They claimed that from the testimony of the state's witness, Henry, the issue of manslaughter arose. Henry testified that he and the deceased went to the home of Willman and there found Willman, his wife and Mrs. Howard; that Walker and Howard later arrived on horseback. Walker asked McCurdy if he had been before the grand jury. McCurdy replied that it was none of his business. At that time the parties were all together. From Henry's testimony we quote:

"He (Walker) told Jack it would be in a minute, and punched Willman. They got hold of Jack's arm, Walker holding his right arm and Willman his left, and led him away from the house. Walker asked him then if he had been before the grand jury, and Jack told him that it was none of his G__ D___ business. So Walker told him it would be and reached down and picked up something and knocked him in the head with it. I don't know what he picked up, a wagon spoke it looked like to me — he hit him right across the head there. * * * He hit him with both hands and Jack kind of groaned and fell. Walker hit him again right back of the head, and after he rolled over there then he hit him right across the face."

Henry also gave testimony to the effect that some three weeks prior to the homicide Henry, Walker and McCurdy were engaged in making whiskey together; that due to a difference between Walker and McCurdy, Walker sold his interest in the still to McCurdy. Henry testified that during the day preceding the homicide, at night, Walker had asked Henry if McCurdy had gone before the grand jury at Comanche that day. Henry said he did not know and Walker replied: "We will kill the son-of-a-bitch if he gives anything away." There was evidence that in the evening of the day on which the homicide took place the appellants, Howard and Walker, met the witness LaGrone at the village of Hasse. Walker asked him if he had seen Jack McCurdy, and upon receiving a negative reply, said that if he ever saw Jack McCurdy any more, no one else would ever see him alive. McCurdy had been at Hasse on the morning of the day. Other testimony in the case indicates that it was a short time after this conversation that Howard and Walker arrived at the home of Willman, where the homicide took place. Henry also testified that when Willman and Walker led McCurdy from near the house to the place where the homicide took place, that Howard led him (Henry) off in another direction. After McCurdy was struck, according to his testimony, Henry fled. Howard fired at him and commanded him to return. Howard and his companions then forced Henry to assist them in taking McCurdy's body and depositing it upon the railroad track.

The testimony in the case on the previous trials will be found in Willman v. State, 92 Tex.Crim. Rep.; Howard v. State, 92 Tex.Crim. Rep.; Walker, Howard Willman v. State, 94 Tex.Crim. Rep.; Willman v. State, 268 S.W. 933. Reference is made to the reports mentioned for a more comprehensive statement of the facts.

Appellants, in support of their contention that there was error in refusing to charge on manslaughter, cited many cases to the point that where the issue of manslaughter is raised by the evidence, the jury, in an appropriate instruction, should be called upon to solve the issue. See McLaughlin v. State, 10 Texas Crim. App. 359; Halbert v. State, 3 Texas Crim. App. 656; Arnwine v. State, 49 Tex.Crim. Rep.; Pickens v. State, 86 Tex.Crim. Rep.; Steen v. State, 88 Texas Crim Rep. 257; Lewis v. State, 231 S.W. 113. The issue of manslaughter arises when, by adequate cause, the mind of the assailant is rendered incapable of cool reflection. From the testimony quoted and relied upon by the appellants, it appears that the deceased, McCurdy, knew that Walker had committed a felony and that Walker was apprehensive that McCurdy would disclose his knowledge to the grand jury. There were circumstances leading to the belief that on the day of the homicide appellants believed that McCurdy had been to the county seat. Walker indicated his intent to kill McCurdy upon conditions named. Immediately before the tragedy McCurdy was asked by Walker in the presence of Willman and Howard if he had been before the grand jury. His answer was evasive and calculated to convey the impression that he had. Walker and Willman, acting on concert, then conducted McCurdy in one direction while Howard led Henry in another, McCurdy having in the meantime been told by Walker that it would be his business. Upon repeating the demand to know whether McCurdy had been before the grand jury and again receiving an unsatisfactory answer, the fatal blows were struck by Walker, Willman acting with him and Howard keeping guard over Henry. After the tragedy Walker, Howard and Willman placed the body of the deceased upon the railroad track, where it might be made to appear that he had been killed by a train. In this enterprise, Henry, through coercion, co-operated.

Appellants' counsel, in the conduct of the cases on the various trials and appeals, have shown commendable fidelity to the interests of their clients as well as ingenuity and skill in the conduct of the trials and appeals. However, we cannot find sanction in the law which supports their contention that on the present record an instruction upon the issue of manslaughter was erroneously omitted. The evidence reflects premeditation and deliberation.

In the seventh paragraph of the court's charge we find the following:

"You are further instructed that the witness, Earl Henry, is an accomplice and you cannot convict the defendants upon his testimony alone, unless you first believe his testimony is true and that it connects the defendants with the offense charged, and even then you cannot convict defendants upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice's testimony, tending to connect the defendants with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendants with its commission, and in that connection you are instructed that an accomplice witness cannot corroborate himself by his own acts and declarations."

From the paragraph of the charge quoted above and others, as compared with the main charge, we infer that corrections or changes were made in the main charge before it was read to the jury.

In excepting to the present paragraph, the use of the word "alone" was criticized; also the failure to embrace in the paragraph of the charge in question the law of reasonable doubt. The charge given has been the subject of discussion in many decisions of this court. The writer cannot better express his views than by quoting from the opinion in Anderson's case,254 S.W. 989, 95 Tex.Crim. Rep., as follows:

"The paragraph of the charge quoted is like that suggested in the seduction case of Campbell v. State, 57 Tex.Crim. R.,123 S.W. 583. Since this case was written this court has on several occasions indicated that the form of charge therein suggested did not accurately present the law, but owing to the state of the testimony in some cases the use of the form was not calculated to injure the accused, and was therefore not reversible error. (Abbott v. State, 250 S.W. 188; Watson v. State, 90 Tex.Crim. R., 237 S.W. 298), while in other cases presenting a different state of facts it might be misleading and harmful. See Standfield v. State, 84 Tex.Crim. R.,208 S.W. 532; Walker v. State, 252 S.W. 547. Where the testimony of the accomplice is so specific in giving the details of the offense as to show without question that the offense was committed through the agency of the accused, or when the other testimony is conclusive of guilt of the accused, the use of the form mentioned has been held harmless, though inaccurate. See Watson v. State, supra; Abbott v. State, supra; Walker v. State, supra. In instances where the testimony of the accomplice, while criminating in its nature, does not embrace all of the elements of the offense as well as connect the accused with its commission, the form used is misleading in that it in terms tells the jury that they may convict upon the testimony of the accomplice if they believe it is true andbelieve there is other corroborative testimony tending toconnect the accused with the commission of the offense. It is obvious that in many cases where the testimony of an accomplice is used his testimony may be true and sufficientlycorroborated, but still not prove his guilt. Illustrations emphasizing this thought will be found in the Abbott case, supra.

See Spears v. State, 277 S.W. Rep. 142.

Cognizant of the trouble that has often arisen from the use of the form mentioned, it is the subject of wonder that its use is continued. In the present case, however, we find it and must, as we have done in other instances, measure its sufficiency by the evidence in hand. It is to be noted that the charge given requires the jury, as a predicate for conviction, to believe the testimony of the accomplice to be true; also to believe that it connects the defendants with the commission ofthe offense charged; and that even then no conviction could behad upon the testimony of the accomplice in the absence ofother testimony tending to connect the accused with the offensecharged. In the present case, the criminating testimony coming from the accomplice embraces all of the elements of the offense, and connects the accused with its commission. It therefore comes within the purview of Abbott v. State, supra; Watson v. State, supra; Anderson v. State, supra, and the precedents therein cited. If, in the present case, the jury believed that the witness Earl Henry, told the truth in the particulars in which he related the conduct of the accused, no element of the offense or the connection of the accused therewith is wanting. The corroboration comes from circumstances which have been discussed in some detail in the opinions on the former appeals. See Walker v. State,94 Tex. Crim. 653; Willman v. State, 268 S.W. 933. A review or discussion of them is deemed unnecessary further than to say that they are deemed sufficient to meet the legal measure of corroborative testimony.

Appellants requested a special charge as follows:

"Gentlemen of the Jury: It is the testimony of Earl Henry that is principally relied on in this case for conviction. Now, if you should believe and find from the evidence as a fact that at the time of the alleged killing Ed Walker and Gibbs Howard rode up to where Jack McCurdy, Earl Henry and W. W. Willman were talking and that they got down and walked up to said parties and that Ed Walker took the said McCurdy by his arm and defendant W. W. Willman took the other arm of deceased and they walked off some ten steps, and that the said Ed Walker asked the said McCurdy if he had given anything away before the grand jury, and the said McCurdy said, 'None of your God damn business,' as testified to by the said Henry; and if you should further find and believe from the evidence that the said Walker reached down and picked up some instrument and struck the said McCurdy over the head with it and killed him, and if you should further find that the said Howard fired a shot in the direction of the said Henry, as testified to; and if you should find and believe that there is other evidence in the record, aside from that of the witness, Earl Henry, which corroborates his said testimony sufficiently, as corroboration is defined to you, and you should believe both the evidence of the said Henry and the corroborating testimony to be true, still you cannot convict the defendant, Gibbs Howard, for any grade of homicide unless you should further believe and find from the evidence, beyond a reasonable doubt, that the said Gibbs Howard knew before and at the time the said blows were struck by the said Walker that said Walker was going to strike and was striking the deceased with the specific intent to kill; and unless you so find you will acquit the defendant, Howard, and say by your verdict, 'Not guilty.'

"This charge is given you as a part of the law in this case and you will consider it and give it equal weight with the main charge herein."

The court also charged on alibi, which was the defensive theory of the appellants, and on aggravated assault, based upon the absence of intent to kill. He also gave several special charges, one instructing that if Walker struck the blow with an instrument which was not a deadly weapon without the intent to kill, there could be no conviction of any degree of homicide. Another special charge given was in substance to the effect that if the instrument was not a deadly weapon, there could be no conviction unless the evidence showed that Walker had a specific intent to kill.

The court instructed the jury on one phase of the law of principals, namely, that one is a principal who, being present and knowing the unlawful intent, aids by acts or encourages by words or gestures, those engaged in the unlawful act. See Vernon's Tex.Crim. Stat., Vol. 1, Art. 75.

The evidence in the case and, in fact, the recitals in the special charge requested, seem to raise at least one, if not two, other elements of the law of principals. In Art. 78, Vernon's Tex.Crim. Stat., Vol. 1, it is declared that any person who advises or agrees to the commission of the offense and is present when it is committed is a principal thereto, whether he aids or not in the illegal act. According to the evidence, Howard was present when McCurdy was killed. He, in company with Walker, had been searching for McCurdy at Hasse; had been informed that he had been there; and in Howard's presence (according to the evidence of LaGrone) Walker said that after he saw McCurdy no one else would ever see him alive. At the time this remark was made, Walker and Howard were on their way from Hasse to the home of Willman, where the homicide took place. In Howard's presence, Walker there accosted McCurdy about reporting to the grand jury. The conduct of Walker, Willman and Howard, as detailed by the testimony of Henry, is indicative of a pre-arrangement to kill the deceased. Walker and Willman, after exchanging a signal, took McCurdy to one side, and Howard, apparently acting with them, took Henry aside. When the fatal blow was struck by Waker and Henry sought to escape, Howard restrained him from doing so by firing at him and also acted with Walker and Willman in forcing Henry to aid in endeavoring to suppress the evidence of the crime by putting the body of McCurdy upon the railroad track.

In so far as the special charge refers to the knowledge of Howard, it covers a subject which was embraced in the main charge to the extent that in that charge the jury was told in substance that to hold Howard as a principal he must have knownof the unlawful intent of Walker in striking the fatal blow. That is not the language but the meaning of the charge that was given.

The only affirmative defense is alibi, which was accurately submitted to the jury.

There was no affirmative evidence that Howard was ignorant of Walker's intent, and therefore the law did not demand an affirmative charge on that issue. The charge requested was so framed as to withdraw from the jury the evidence which tended to make Howard a principal under Art. 78, supra. It was therefore properly refused.

The motion is overruled.

Overruled.