the State

Court of Criminal Appeals of TexasMar 24, 1894
33 Tex. Crim. 147 (Tex. Crim. App. 1894)
33 Tex. Crim. 14725 S.W. 789

No. 447.

Decided March 24, 1894.

1. Bills of Exception — Practice on Appeal. — Bills of exception filed after adjournment of the term of court will not be considered on appeal, though they may have been incorporated in the record.

2. Murder — Public Sentiment Against the Defendant — Change of Venue. — On a trial for murder, where it is insisted that public sentiment in the county was so great against defendant that he could not obtain a fair and impartial trial in said county, Held, not maintainable when such contention is not supported by anything in the record, and where no change of venue was applied for.

3. Murder of the First Degree. — See facts stated which are held sufficient to support a verdict and judgment for murder in the first degree, with the penalty.

APPEAL from the District Court of Bexar. Tried below before Hon. GEORGE H. NOONAN.

Upon his trial under an indictment charging him with the murder of one Anderson Harris, appellant was convicted of murder of the first degree, with the death penalty.

After seven witnesses for the State had been examined, defendant announced to the court, through his counsel, that he wished to withdraw his plea of not guilty and enter a plea of guilty of murder in the first degree, and also asked permission, in person, to make a statement to the court and jury. The court then duly informed the defendant of the effect and penalty attached to a plea of guilty, and he thereupon pleaded guilty, as charged, and the court entered a plea of guilty in lieu of the plea of not guilty.

Defendant then made the following statement, viz: "I said all along that I did not kill Harris, and I say now that I did not. When the detectives first arrested me they told me they had the whole proof on me, and said if I would tell the truth it would be easier on me, and last Saturday night was the beginning of it. I mean about the killing. I spoke to this Mexican, Elois Vidal, and was telling him about my troubles. I told him it looked like all the darkies in San Antonio were against me, and he asked me why. I told him. I think it was about three months ago I came down here and put in my complaint that some one had destroyed about $75 worth for me. I knew it was negroes. They cut up my clothes; broke my watch and kept it about three days, and brought it back and threw it in the corner of the fence. For the last three months Mrs. Harris has told me to look out for Harris; that when he got angry at her he would say that he was going to kill me, and for the last three months she has cautioned me about him. I asked her how he would do that, and make me welcome at his house. And she said he was doing that to get a good chance to kill me at his own house. And ever since my clothes were cut up I have thought he had it done, and I have been afraid of him ever since. And when I met this Mexican, Vidal, last Saturday night (we have been friends a good while; I have known him pretty near as long as I have been here), and I told him about my troubles, and he said to me, 'Well, that matter can be easily fixed,' and I asked him how. I told him I did not want to kill anybody, and I would not have killed him if it was left to me. And he said, for a few dollars, and if he had a pistol, he would do it himself. And he said, 'I have a partner who will help me.' And he said, 'About three days ago did you not see a tall, slim Mexican standing there by the platform?' (that was by the International depot). And he said, 'He is a good partner of mine, and I can get him to help me.' And he said, 'If you want to, you can go along and see it well done.' This was the Saturday night before he was killed. The Saturday night after he was killed I was in jail. And then this man (Elois Vidal was his name) spoke about the pistol and the few dollars, and I said I did not have any money. I said, 'What do you mean; how much?' He said, 'O, two or three dollars, if you have a good pistol,' and he told me if I would get the pistol he would do it that night. He said he was going to be paid off that same night and he would use his own money and I could pay him afterwards. I told him all right and said I did not have any pistol with me, but said if he would come there where the South Heights crosses the Southern Pacific railroad track, about half-past 7 or 8 o'clock that night, I would bring the pistol, and he said all right. That was last Saturday night a week ago, and must have been about 4 o'clock in the evening. I went on down to the store; I had been out to Prospect Hill, and I went on down to the store. I went over and got the pistol and was over there again, when I met this Mexican Vidal again and gave him the pistol, and he said, 'All right, I will attend to it,' and asked me to describe Mr. Harris to him. He did not do it that night, and never did it Sunday night, and Tuesday evening I was coming from West End, about half-past 7, and he got on my wagon and went over to Alamo plaza, where Harris' carriage stood. He said, 'I don't know that man,' and says, 'There is a white man that looks just like him, and I don't know him.' I told him I was a friend of the white people, and did not want him to kill a white man; told him to go over there, anyhow, and he went with me. He pointed the hacks out to me, but I never showed up on the plaza. And I said, 'Across there, I think, is him.' He went up to him and came back and said, 'Yes, that's him,' and that he told Harris to meet him in half an hour and take him to Presa street and get a bunch of women. And Vidal said to me, 'Do you think you will make it down there before I do?' I said I did not care much about going, and he said, 'Yes, I want you down there to see that it is well done.' He got the hack there at the mill bridge and carried Mr. Harris down on Presa street to the first turn on the left-hand side and shot him. He made him turn round after he got there, and just before they got there I could hear the hack coming. I was about 100 yards from the east side of the pasture fence, near where Mr. Harris was killed, and when they drove up there he told him in Spanish to turn round and stop. About that time I was outside the pasture fence, going towards him, and when he shot the first shot I was about fifteen feet from him, as near as I can tell. Then I stopped. The horses' heads were turned back towards Presa street, and I stopped and stooped down, this way [here he described his stooping position], and I could see, after he fired a shot, that Mr. Harris kind of fell over and looked like he was on his knees. He shot at his head twice, but whether he hit him or not I don't know, for I lit out. I was drinking. I want to ask the jury to enforce my punishment, and have mercy on my neck."

Upon inquiry as to what had been his relations criminally with Harris' wife for several years, defendant said, "I am not willing to tell." Witness here examines the pistol, fully identifies the same, and said: "That is the pistol I gave the Mexican Vidal. It is not mine, but it is the one I gave him. I had this pistol cut off; it was longer than it is now. The mark by which I distinguish it is the letters 'U.S.' on it." Witness here fully identifies some rags shown him. He said: "Yes, sir, I had them; Vidal told me to get them and put them on my feet and no one would know I had been there; and I put them on just before I got there, about 100 yards from the spot where he was killed, and wore them to the spot where he was killed, and wore them away a piece. He and I went away together. He followed me off, and I threw the rags away, and afterwards the sheriff carried me there and got the rags. They told me to tell the truth and they would save me. I wore those rags, I think, about 400 yards from the place of the killing, and then Vidal told me to pull them off. Harris was killed, I think, near 10 o'clock at night, February 6, 1894."

Question: "Your statement is that you gave him, Vidal, $2.50 in money and this pistol to kill the man Harris?"

Answer: "He told me he would do it for that, and I gave it to him for that purpose."

This statement of defendant was corroborated in many important particulars by other witnesses examined by the State.

The Mexican, Elois Vidal, was introduced by the State, and he testified: "The defendant, Austin Brown, came over to the stable of C. F. H. Guenther, where I was working, on Tuesday night, February 6th, and we were talking in Spanish, and he told me he wanted to talk with me. I told him to wait until I got through with the animals. Afterwards I went outside and talked with him. He told me he wanted me to do something for him. I said I would like to know what he wanted me to do. He said, 'I want you to go over here with me.' He said, 'You are a good friend of mine.' And he said, 'I am a married man, and I want you to keep your mouth shut, and I want you to go with me and bring one or two women from some place, and don't give anything away.' I thought it was the truth, and I told him all right. He told me to change my clothes, and I said, 'What is the matter with these clothes — are they not good enough?' And he said, 'No, they are not good enough,' and begged me to go and change my clothes, and he said he would wait for me over at the corner. I went inside and got my supper and changed my clothes, and went over there and he took me to Blum street. Before we got there he told me I was to take a hack. He said, 'Not any hack,' and I said, 'Why?' He said, 'Well, the man I want you to take is a good man, and if you take any women from that place he won't tell.' He said, 'You go over there on Alamo plaza, and I will be there directly.' I went over in front of the Menger hotel, and stood in front of Carter Mullaly's, and he came and said, 'There is the man I want you to hire.' I said, 'All right,' and he pointed out Harris. He said, 'That gray horse team there,' and said, 'Here is $1.50; go and see what he wants;' and I said, 'All right,' and went and talked with the man, but I can not recollect what he said he would charge. I went and told Brown what happened between me and the hackdriver Harris, and he told me to tell the hackdriver to go to the mill bridge at 9 o'clock. The hackdriver said, 'Will it suit you right away?' I said, 'No, sir; it is not time yet; but at 9 o'clock.' I asked him if he was engaged for a load, and he said no, and I said, 'I will be there at 9 o'clock; will you be there?' And he said, 'All right.' I gave him half a dollar, and I told Brown about it. He went home. I heard the fire bell, and I stopped there a little while, and then went to the mill bridge, and the hackdriver was there — by hackdriver I mean Harris. I had told him what I was going down there for. I met him at the mill bridge and gave him a dollar and jumped in his hack, and he drove right to the place designated by Brown, and while he was going I heard somebody hallooing, and he heard it too, and he turned his horses, and a voice was heard saying, 'What is the matter?' and he turned his horses to the right, and when he did so somebody was by the side of the fence, near the hack, and I heard the first shot. I was inside the hack at the time. After that man gave him the first shot, deceased said, 'O, Brown! I never did anything to you,' or something like that, and that is the way I knew his name; but I had known him before that as a driver. I did not know his name until that night. At the first shot I was inside the hack. At the second shot I saw him fall to the horses, but he did not fall to the ground; he fell on the dashboard. I jumped from the hack and ran, and I heard somebody talking, and then I came back a piece towards the hack. I was trying to get into the pasture. I think I heard another pistol shot while running. When I came back by the hack running, I saw Brown with his left hand on the hip of the horse — he seemed to have the reins in his hand — and with the other hand he pointed the pistol at the man Harris. I believe he tried to shoot him in the head. The pistol was within about twenty inches of the man's head at the time, I think. I think I heard another shot after that. After Brown fired those shots he ran behind me and caught up with me. He said to me, 'What are you running for?' I did not want to answer, but he said, 'Hold on,' and I stopped, and he said, 'What are you running for?' I said, 'Why did you not tell me something about that?' And Brown said he had not told me because he knew I would not have done it. I mean by that, he knew I would not have taken the carriage. Brown told me, if I wanted to live a few days, to keep my mouth closed. Right at that place I did not see anything on his feet, but further on he told me to stop, and I saw him untying some rags on his feet, and he said he was going to put on his boots. I did not see him have anything in his hand but the pistol. He said he was going to throw the pistol away; he did so, and then turned and told me he was going to get the pistol, and did go back and get it and told me to take it. I told him I did not want to take it; but Brown told me to take that pistol, and to take it to my house and keep it there until he told me he wanted it. I took it, because he told me if I did not take it I would see how he would fix me. I think the pistol shown here in court is the one he gave me. I did not report the killing because he told me all the negroes knew him, and were his friends and liked him, and that if I told anything they might send him to prison, but they would kill me."

On cross-examination he testified: "I did not know Brown's name until that night. I was working for C. F. H. Guenther. I had no reason for visiting Brown. I have known him for about two years. Sometimes I would go to the store to take goods, but not for the purpose of seeing Brown. When I was first arrested the officers asked me his name, and I told them I did not know his name. I have known him for about two years, but not by name. I said that it was over at the corral where Brown engaged me to get the hack for him; I mean at the stable of Guenther. He said he wanted the carriage for the purpose of bringing some ladies. The reason that I went straight to Harris was because Brown pointed him out to me. I gave Harris fifty cents there on the plaza. On the day after I was arrested I did tell the detectives and Mr. Wood that I had not been with the defendant on the night of the killing; denied after the arrest that I had been with Brown on the night of the killing. I denied being with him because I was afraid of being killed. He told me to consider it as a dream, and not say anything about it, because if I did the other darkies would kill me. When I took the hack to where Brown wanted it, I was not sitting on the seat with the driver; I was seated inside on the back seat."

On redirect examination witness testified: "This killing occurred in Bexar County, Texas, on the night of February 6, 1894, between 10 and 11 o'clock at night."

Question (by jurymen): We would like to know if Brown told you what position to take on the carriage, whether to sit on the box or to sit inside?"

Answer: "No, sir; he did not tell me what position to take. I went inside."

No briefs on file with the record for either party.

Appellant was convicted of the murder of Anderson Harris, and his punishment assessed at death. When arraigned he entered a plea of not guilty. After several witnesses had been examined for the State defendant withdrew his said plea of not guilty and entered a plea of guilty of murder in the first degree. He gave the jury a detailed statement of the circumstances leading to and attendant upon the homicide. The State introduced several other witnesses, whose evidence is also incorporated in the record. The statement of facts found in the record shows a deliberate, cold-blooded assassination. It was a most atrocious murder, and one without an extenuating circumstance. Thoroughly planned, it was executed in a most diabolical manner. Two bills of exception are incorporated in the record, but, having been filed after adjournment of the term, can not be considered on appeal, and therefore the rulings complained of will not be revised.

The contention that public sentiment was so great against defendant that he could not obtain a fair and impartial trial in Bexar County is not attempted to be supported by anything in the record. A change of venue was not applied for, nor is the contention supported by any testimony whatever — not even by affidavits in support of this ground of the motion for a new trial.

As presented to us, we see no reason for disturbing the conviction, and the judgment is affirmed.


Judges all present and concurring.