¶1 I agree to the result reached. While the definition given by the court of "malice" is subject to some criticism, I believe an analysis of the same shows it embodies a substantial definition. Ordinarily defined, "malice is the intentional doing of a wrongful act without just cause or excuse, and denotes a heart totally devoid of social duty and fatally bent on mischief." From the definition given by the court, we gather that malice is the intentional doing of an act injurious to another, in willful disregard of the rights of that other, and exists where one does a cruel act to another without legal excuse, justification, or extenuation. This embraces the essential elements as suggested in some of the definitions given. "Malice" and "malice aforethought" are treated by some of the authors as convertible terms, meaning in effect the same thing, though Mr. Bishop says "malice aforethought" is applicable alone to murder, and has an intenser signification than mere "malice." The definition of "express malice" in the charge is as follows: "Where murder is committed with a sedate and deliberate mind, and in pursuance of a previously formed design, it is murder upon express malice." Here the word "unlawful" is omitted, and the word "murder" is used. By going back in the court's charge to a previous definition of murder, it will be found that it is stated to be an unlawful killing, etc.; and so, by bringing this definition forward, we make out the definition of a killing upon express malice. It is a matter of regret, in as important a case as this, and especially where malice is so well defined in the authorities, that we should be under the necessity of construing the charge in order to determine whether or not the substantial elements of malice were given and defined by the court. It is believed, however, that the charge is sufficient. Harris v. State, 8 Texas Crim. App., 9; Martinez v. State, 30 Texas Crim. App., 129; Crook v. State, 27 Texas Crim. App., 198; Harrell v. State ,39 Tex. Crim. 204
¶2 [NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture APPEAL from the District Court of Anderson, on a change of venue from the county of Henderson. Tried below before Hon. A.D. LIPSCOMB.
Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary.
The appellant was charged by the indictment, together with Joe Wilkerson, Walter Wilkerson, W.B. Brooks, Sam Hall, W.A. Johns, and John Gaddis, with the murder of Jim Humphries by hanging him with a rope to a tree, on the 23d day of May, 1899, in Henderson County.
At the same term of the court each of the above joint defendants was separately indicted in two different indictments for the murder of the other two Humphries; in one for the murder of John Humphries; in the other for the murder of George Humphries; that is to say, the defendant, Bob Stevens, was jointly indicted as set out above, with all the defendants for the murder of Jim Humphries (number 2840). He was also indicted (number 2853) in a separate indictment for the murder of George Humphries; and in another separate indictment (number 2854) for the murder of John Humphries, and so was each of the other defendants similarly indicted.
John Greenhaw, Arthur Greenhaw, and Polk Weeks are each separately indicted, three bills against each; that is to say, John Greenhaw is indicted in one bill for the murder of Jim Humphries; in another, for the murder of John Humphries, and in another for the murder of George Humphries, and so with Arthur Greenhaw and Polk Weeks.
At the September term of the District Court of Henderson County, on September 7, 1899, the court, of his own motion, changed the venue of all the defendants, except John and Arthur Greenhaw and Polk Weeks, in all of the cases, to the District Court of Anderson County, Texas, to which order of the court so changing said venue the defendants tendered their bills of exception.
On the 18th day of September, 1899, at said September term of the District Court of Henderson County, the court, on his own motion, transferred one case each pending against John Greenhaw, Arthur Greenhaw, and Polk Weeks to said District Court of Anderson County, Texas; that is the case wherein each of them is charged with the murder of George Humphries, leaving two cases each against them pending in the District Court of Henderson County for the murder of John Humphries and for the murder of Jim Humphries, respectively.
All of the joint defendants in number 4383, being number 2840 on the docket of the District Court of Henderson County, made their joint motion and affidavit for severance in all things complying with the statute, asking that the two Greenhaws and Polk Weeks be tried in advance of said codefendants, that they might have their testimony untainted at the time of its delivery either by the acquittal of said three persons, or an order of dismissal of the prosecution pending against them, to the end that each might testify without a prosecution hanging over him, which motion was overruled by the court and all the joint defendants ordered by the court to make an announcement. All the joint defendants, except the defendant, R.J. Stevens, then made their motion and affidavit to have said Stevens first put on trial in advance of them, which motion was sustained by the court and said Stevens ordered to announce. The said defendant Stevens then made his individual motion, supported by affidavit for a severance, asking that the said two Greenhaws and Weeks be first put on trial in advance of him, which individual motion was also overruled by the court and said Stevens forced to go on trial before said Greenhaws and Weeks. The grounds of objection upon which the court acted in overruling said motions for severance and in refusing to put John and Arthur Greenhaw on trial in advance of the joint defendants, or in advance of the defendant Stevens, are contained in the answer the affidavit and protest made by said Greenhaws and Weeks.
The district attorney also filed his answer and protest to said motion of said joint defendants to have said Greenhaws and Weeks first tried, which the court also considered in overruling the motion of the joint defendants. The substance of the matter stated in these protests against the severance will be found fully stated in the opinion of the court below.
As stated above, on motion of his joint codefendants, whose motion for a severance was granted, this appellant was first put on trial, which resulted in his conviction as above stated.
The Humphries, Jim, George, and John, lived in what is known as the trans-cedar country, in Henderson County. They were each taken from their homes, at between 1 and 2 o'clock p.m., May 23, 1899, and were hanged to a tree, by a mob, not very far from the places of their residence. George and John Humphries were each sons-in-law of Jim Humphries, and lived but a short distance from him. The parties comprising
the mob which hung them stated that they were hunting for a man by the name of Patterson, who, some time prior thereto, had killed a man by the name of Rhodes (a constable), and was otherwise charged and had the reputation of being a thief and bad character. It appears that he was a fugitive, and the mob claimed that he was being concealed by the Humphries, who were also claimed to be hog thieves. Polk Weeks and John and Arthur Greenhaw turned State's evidence, and they testified that the parties constituting the mob which had hung the Humphries, after they failed to find Patterson, consisted of the following named persons, viz: Joe Wilkerson, Walter Wilkerson, W.B. Brooks, W.A. Johns, Sam Hall, John Gaddis, Mahan, Arthur Greenhaw, John Greenhaw, Polk Weeks, and the defendant in this case, Bob Stevens.
John Greenhaw, in his testimony, testifies to the immediate facts attendant upon the hanging, as follows: That after arresting each of the parties and taking them out into the road, they talked to the Humphries awhile. They, the mob, asked them if they knew where Patterson was, and the Humphries said they didn't know. They talked there awhile and then took them out in the woods. The tree where the Humphries were hung is fifty or seventy-five yards from the road. The crowd took the Humphries out there and tried to get them to tell where Patterson was, and they didn't do it; the crowd told them if they didn't tell them they would hang them; the Humphries didn't tell, and they just naturally hung them. They tied ropes around their necks and tied it to a tree, and put the Humphries up on some horses and drove the horses out from under them. I never saw any one touch the horses only Joe Wilkerson; he hit one horse. I didn't do anything. Polk Weeks tied the ropes around the tree. I didn't see anyone tie up their feet, but heard something said about their feet touching the ground, and somebody spoke about tying them up, but I didn't see who it was. After they were dead we went home. We went right up the road north, and then turned west. I got home about 3 o'clock, maybe later than that. Arthur Greenhaw went home with me. Polk Weeks' testimony is to the same effect.
Defendant's only defense relied upon was alibi. Over his objections the State proved by Jim Sullivan that in February, 1898, he was in the town of Athens, Texas, and was there introduced to Joe Wilkerson by E.J. Rice; that in a conversation had with Wilkerson at that time Wilkerson told him that he was there at court prosecuting some persons for stealing his hogs; that if the law did not give him revenge for it, — that is, for the theft of his hogs, — he was going to take it himself; that he was talking about the deceased, the Humphries people, and said he was going to make the sons of bitches look up a limb, and that he wanted some of us fellows at Athens to help him; that no one was present but Rice, Wilkerson, and witness.
The State also introduced witness J.A. Bell, who testified substantially: That at Grady's gin, in Henderson County, in September, 1898,
he had a conversation with Wilkerson, none else being present, and Wilkerson said that the Humphries ought to be put out of the country; that they ought to be hung, and that he was going to see that they (meaning the deceased) were huug. Witness had asked Wilkerson about his case with the Humphries, and in reply he said the outfit ought to be put out and ought to be hung.
Witness Dave Claymans, introduced by the State, testified substantially: That in Henderson County, about the 1st of June, 1898, and one year prior to the lynching, he had a conversation with Joe Wilkerson in the presence of John Rhodes, the constable (now dead), and Walter Wilkerson, and, he thinks, Bill Brooks (two of the accused), and Joe Wilkerson was talking to witness about the Humphries boys stealing his hogs, and he said when he got through with them they would not steal any more; that he had them in court for stealing his hogs.
The State proved in substance, by E.H. Garrett: That on the morning of the first Saturday in April, 1899, Joe Wilkerson was speaking to witness (who was at that time justice of the peace of the trans-cedar country) about the hog-theft trial or case of the Humphries and said to witness: That some people said that the Humphries would beat the case, and witness replied to him, Yes, thought they would, that they virtually had it beat at that time. When Wilkerson then said, If they did beat their cases it would cause mob law in this country. The said conversation occurring in his (witness') precinct and near Aley, and no one else was present but witness and Wilkerson.
Defendant objected to proof of these declarations of Wilkerson, because it was incompetent and irrelevant, hearsay and not binding upon defendant Stevens; that a, conspiracy had not been shown at the time said acts and declarations were made on the part of anyone, and it had not been shown to exist at any time prior to the day of the homicide, and said acts and declarations, if binding at all, could only be binding against Joe Wilkerson, and besides were not made in furtherance of a common design agreed upon with anyone, and certainly not with defendant Stevens. Source: CourtListener
