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his bride. She, however, told him of her, them. He said he didn't know anything about row and promise to the dying Mrs. Mc- them. He said Jack Hufstedler was the first Gaughey, and to Col. McGaughey, to stay will. I told John he had the wills. I never

one that told him about his father's making a with and take care of Col. McGaughey until told him about seeing him get them. * he should likewise depart, and that she would John cried, I don't know what he was crying keep that vow if it went to the extent of about, unless it was because I wouldn't burn declining to become his bride. Mr. Beau- hall crying; I was sitting in the room."

the wills. John was walking up and down the champ did not seek to have her break her vow, but instead did not press his suit fur

Mrs. Tucker (Beauchamp) further testified ther than to exact a promise from her that that, while Col. McGaughey was lying a as soon as Col. McGaughey did depart she corpse in his home, she saw appellant go would at once become his bride. She faith to his mother's writing desk, where she had fully, as stated, kept her vow, devoted her placed these two copies of the will, hunt for whole time and attention to the care and and find them, take them out, and secrete comfort of Col. McGaughey for more than them about his person. two years after the death of Mrs. McGaugh

Appellant's drunken witness, Jim Click, ey, and until he died.

swore before the grand jury, which was takCol. McGaughey knew of the sacrifices and en down in writing and signed by him at daily was made aware of the care Mrs. Tuck the time, and which he did not entirely deny er gave him in response to the vow that she on the trial of the case, that: had made to his dying wife, and in gratitude willed Mrs. B. the property but had never seen

"John said he had heard that his father had for her devotion and sacrifices he determined, the will. He said this about the time his fain January, 1912, before he died on March ther died. I heard that Col. McGaughey had 28th following, to modestly recompense her. made a will right at the time Colonel was a He thereupon executed a will by which he from Mrs. Beauchamp, but I may have told

John never told me he stole the will gave her a one-half interest in said little when I was drunk that John had told me he farm. He wrote out this will in his own stole the will from Mrs. Beauchamp, or out of hand, took it to his banker friend, Mr. Jones, the desk when the Colonel was a corpse." in Tolar, and had Mr. Jones to typewrite it Mrs. Tucker (Beauchamp) further swore: for him, making one original and two copies. "When John McGaughey asked me to burn He signed and acknowledged each of these those wills or copies of the will, he said that, three copies before his banker friend, Mr. ! stay there as long as I wanted to; it didn't

if I would burn them up, he would let me Jones, who was also a notary public, telling matter how long it was; and that he would him that he would keep one of the copies as educate the boy and give me a set of silver the original and wanted the other two, one knives and forks; and in the fall he would give for Mrs. Tucker and the other for appellant. I could stay there as long as I wanted to. He

me $100, and I don't know what all. He said He kept one of these copies himself, and at also said he would give me a nice diamond ring. the time delivered the other two to Mrs. He offered me these to burn the wills. I told Tucker. She placed these two copies in the him I wouldn't burn them." writing desk which had formerly been the After Col. McGaughey had, been buried, writing desk of Mrs. McGaughey. While Col. Hardy Beauchamp, the deceased, then claimMcGaughey, two months later, was lying oned of Mrs. Tucker the fulfillment of her his dying bed, the appellant visited him. He plighted vow to him. Recognizing her vow then heard of the will his father had made. to him, and having faithfully and tenderly He went to the banker, and the banker told carried out her vow to Col. McGaughey and him all about it. This information, it seems to his wife on her dying bed, she saw no was communicated to him while Col. MC- further impediment or reason for delay in Gaughey was yet alive but just before he marrying Hardy Beauchamp, and she did died. While his father was lying a corpse in marry him on April 3d, five days after the his home, and before he was interred, appel- death of Col: McGaughey. She and her huslant hunted for and found these two copies band continued to live at this McGaughey of his father's will and at once took posses- home from that time until the appellant mursion of them and secreted them on his per- dered him on February 6, 1913; they claimson. Just after his father was interred he ing the right to live there and one-half of the saw and talked to Mrs. Tucker about having property by virtue of Col. McGaughey's will. heard sometning of a will, but we give Mrs. Appellant kept his room there, which he had Tucker's language:

kept for years, though only there occasional"John (appellant) stated that he had heard ly. He was in and out back and forth from that his father had made a will, and he asked time to time, as he had been in the years gone me if he had, and I told him that he had, and John asked me to burn them. I told him I by, not staying at this home, except at inwouldn't do it. * He said, 'Let's burn tervals, but continued his employment and them, they are no account.' He said he didn't to hold down a job at Austin, or Dallas, or know anything about them, and they were no elsewhere than at Tolar. account. He said he had looked after me and

But he began to would provide for me and never turn me out of try to get possession of the whole of this home. I told him I wouldn't burn the wills. little farm from the Beauchamps, becoming He said they were no good; he didn't know more persistent as the days went by. On anything about it; and I told him I wouldn't burn them. John told me, in that conversation, January 3, 1913, before he murdered deBeauchamps began regular court proceed-, walked a half mile with a neighbor to the ings to probate Col. McGaughey's will. They church meeting. Very soon after her arrival also brought suit at that time against ap- there, she was informed that her husband pellant for a partition of said little farm, had been killed and immediately, and as claiming one-half of it by virtue of said will. rapidly as she could, returned to her home, Appellant not only resisted these suits, but where she found all too true that her hushimself began proceedings against the Beau- band had been murdered by appellant. champs for possession of the little 60-acre While appellant was out interviewing his farm. He sought in every way to get drunken witness Jim Click, as shown above, them out and to get exclusive possession him- Emmett Sellers passed by and saw them in self, but failed. He tried to compromise with earnest conversation. He heard Jim Click them, and there was some movement by both then say to appellant, “You had better not parties to this end, but the compromise was do that.” Appellant had Jim Click, in his broken off just before noon, within an hour, testimony on this trial, to swear that, at perhaps, from the time appellant murdered the time this conversation was had, it was deceased. The compromise, it seems, was just after he had killed the deceased. Sellers broken up and so understood by appellant swore it was not, and all the other facts in just before noon when he and deceased had the case show conclusively that it was not. an interview at one of the stores in the Sellers at the time was passing the McGaugh. little village of Tolar. They then separated, ey house, and swore in effect that the body deceased going to the McGaughey home, of the deceased was not lying where it was where his wife had prepared their dinner. afterwards, in about a half hour, found. SelMrs. Beauchamp swore that her husband lers swore that he was going beyond the Mccame in to his dinner alone a short time be- Gaughey home at the time to get a cow that fore appellant came for his. Appellant still he had bought from Mr. Jack Hufstedler; kept his room in the McGaughey home, and that he rode on to Mr. Hufstedler's, wrote at this time was not only sleeping there but a check for the cow, got the cow, and Mr. was eating with the Beauchamps at their Hufstedler helped him to start the cow off, table. Mrs. Beauchamp had arranged, and and that they drove her from there to the told appellant in the morning, that she was McGaughey home, when they discovered the going to a church meeting in Tolar that eve dead body of the deceased. No one was there ning early. Just after Beauchamp, deceased, at the time, and Mr. Sellers swore that it had finished his dinner, appellant came to was not at that time that he heard Jim the Beauchamps for his. He then claimed Click say to appellant what he said as shown that he had scratched his finger in some way ! above, but that it was a half hour before and asked Mrs. Beauchamp to tie it up for that when he was passing the McGaughey's him, which she graciously did; deceased be place to go get the cow. ing present and assisting therein and fur- Jake Hufstedler swore that, just shortly nishing a liniment which they used on his before appellant murdered the deceased, apscratched finger. Mr. Beauchamp then left pellant was telling him about the Beauhis room, perhaps the house—his whereabouts champs claiming that his father had made are unaccounted for-for some half hour or a will, giving Mrs. Beauchamp one-half of longer until the very moment when he was said little farm, and that in effect they were murdered. Appellant again, while he was trying to hold half of it under the will; that eating his dinner which she prepared and appellant said to him in that conversation: set for him, asked if she was going out as "That he wasn't going to stand for it; wasn't she had announced to him in the morning. going to put up with it; he would die first." She told him she was. He said to her just Paul Hufstedler swore that about this after he had sat down to his dinner that same time appellant, in talking to him about she ought to go to the church meeting. Just the Beauchamps trying to hold half of said at this time he told her he wanted to see little farm and claiming under Col. McGaughJim Click. She swore:

ey's will, said: "He said Jim Click had two bottles of whisky, “There are people trying to beat me out of my and he was going down there to make him throw property. He said, 'I will die before they will them away. I told him there was Jim Click, beat me out of my property.'

He said and he didn't have to go down there. He hol- Mr. and Mrs. Beauchamp were trying to beat loed at Jim; Jim was passing the gate; him out of his property." and John holloed at him; and they talked ; I

Guy Hufstedler swore: That, just shortly don't know what they said. After John talked to Jim Click, he came back and sat down at before the murder of deceased, appellant was the table. John said he was going to make Jim talking to him: Click throw that whisky away; that he would "He said he was having some trouble about get drunk; and that he wasn't going to let him these people trying to take his estate away from have it; and he (John) said, “Miss Lula, don't him; and he said, 'It seems like I could get you think I am plotting against you, because along all right if it was not for Beauchamp; I am not doing it; I am not plotting against seems like Beauchamp is the whole cause of it. you, Miss Lula."

And he said, 'They are going to keep on monkeyAfter seeing Jim Click out at the gate at ing around there till I will kill somebody.' this time, appellant returned and resumed Mr. J. K. Bowman, a deputy sheriff, swore bis dinner. Mrs. Beauchamp, while appellant that just shortly prior to the murder he was was still eating dinner, left her home and on the train with appellant; that appellant

called him over to sit down by him and began Shortly before the grand jury indicted aptalking about the Beauchamps trying to hold pellant in April, 1913, he interviewed said half of this little farm. He swore appellant witness Sellers. Sellers swore: said he was "having a heap of trouble with "I asked him why he used that ax after he Beauchamp about the property, and he said bad shot Beauchamp, and he said he reckon he it looked hard that he had worked hard at was so mad that after he (Beauchamp) fell he

was flopping around there and he grabbed the ax Austin and lived on two meals a day to pay and hit him before he thought. I believe John that place out and for them to come in and said Beauchamp was flopping around there like set up a claim, and he said:

a chicken with his head off, and he used tbe ax

then," "If Beauchamp was out of the way, I could manage Miss Lula."

The evidence further shows that, immediMiss Lula referred to above was Mrs. ately after appellant had murdered deceased, Beauchamp.

he got his drunken witness Jim Click and When said witnesses Sellers and Jake Huf- went with him to the little town to tell of stedler first found the body of deceased just the killing. One of the first ones, if not the after appellant had murdered him, it was first, that appellant saw after the killing was shown that appellant had shot him four Sam Hufstedler. Hufstedler swore: times, once in the face, the ball coming out

“As to John's manner and appearance at that near the ear, three other wounds in his time, if I had not known of the killing, I would

not have suspicioned it at all; he seemed to breast, one near his right nipple, another be as cool as I ever saw him; there was nothnear the left nipple; it passing entirely ing in his looks or manner that indicated any through his body and must have penetrated agitation; be was perfectly cool. He went on

to the house with us in that condition." his heart. His body was found lying on a little uncovered platform extending from the Appellant's sole defense was self-defense, house to the cistern. They found not only which he attempted to establish by his drunkthese pistol wounds in his body, as describ- en witness Jim Click. Appellant himself did ed by witnesses, but also, as described by the not testify. various witnesses, they found this: Near Jim Click swore that he saw the shooting the body of the deceased was an ax bloody all but did not see the ax transaction; that imover. The ax was a chop ax, double-bladed, mediately after the killing: the blade measuring 10 inches from one edge “When I met John at the gate he said: 'I to the other, weighing about 5 pounds, the killed him, but I had it to do.' John didn't handle about 3 feet in length, of hickory me he chopped Beauchamp with the ax. John

tell me how he killed Beauchamp; he didn't tell wood. One edge of the ax had been freshly didn't say anything about the ax. All he said ground. This ax was shown to have been re was, 'I killed him, Jim, but I had it to do.' turned by a borrowing neighbor that morn- He didn't go into details; he didn't make any

explanation; he didn't say Beauchamp was ing and was set down against a tree some doing anything to kill him; he didn't say Beaulittle distance from the cistern. When found champ made a threat on him. I asked him what after the killing, it was several feet from he was going to do, and he said, 'I am going to the body of the deceased, lying flat on the phone for Luther Waldrip, the sheriff, Don't

know whether I said anything or not. I believe ground, with the handle towards deceased's I asked him what he wanted me to do, and he body. After shooting the deceased as shown said, 'Come on, go with me to town.' 'As soon above, and while his prostrate body was lying as I could unharness the mules, we started to on said little platform, appellant put up his and unharnessed the mules, and we both went

town. I met John at the gate. We came back pistol, got the ax from the tree, went to the right on to town. When we got to town, John body of the deceased, and the witnesses swore told me to tell Jones and Fortner.” there were four cuts on the back of the neck

It is true that appellant had his drunken of the deceased with this ax. One witness witness Jim Click also to swear that he was said:

off some distance hitching up his mules, and, "The first cut wound on the dead man was just before the shooting, he heard loud talkright about the hair of the head on the neck; it ing between appellant and deceased, and was a straight gash-cut wound about three inches deep and just the width of the ax, about that he heard appellant say to deceased. “I four inches wide. The second wound was just am going to see Jim a minute," and Beauback of the first wound down on the neck. That champ wheeled around facing John and said, one was not probably over a balf inch deep and "If you go out there caucusing with Click, about four inches wide. The next wound was lower down on the skin, cut-looked like it was I will kill you;" and he ran his hand in cut angling. That wound was very shallow and his pocket. was lower down. There was another wound that hardly went through the skin. There were ing at you now.

"I was looking just as straight as I am lookfour cut wounds all together on the neck."

Beauchamp and McGaughey

came out on the porch. John stepped behind The ax was identified, produced and intro- Beauchamp and said, 'I am going to see Jim a duced in evidence. Another witness swore of minute;' and Beauchamp said, "If you go to

caucusing with old Jim Click, I will kill you, these ax wounds:

God damn you ;' and he whirled around, and "It looked like the licks bad been struck over McGaughey shot him, and he staggered toward every time. The front part wasn't cut; it was McGaughey, and I dropped the lines, and the the back part; like a man would strike over mules began to run, and there was a harness anything. The head was not severed from the house right at me, and, before I got the mules body; it lacked about two or three inches in checked up, I was behind that, and I heard

Beauchamp ran his hand in his pocket; I could [7] The dissenting opinion makes these see it.

I never saw a thing in Beauchamp's objections to what the judge said to the jury hand. I didn't see Beauchamp with an I saw an ax at the cistern, and "I talked to panel, four of whom served on the jury in John over 10 feet away from there. I didn't this case: see John chopping Beauchamp with the ax, "These statutes limit the authority of the because the mules ran away around the house trial court, first, to giving a written charge; out of sight. I never saw any ax in Beau- second, the charge must set forth plainly the champ's hand. Beauchamp didn't have the ax law of the case; third, it must be given after in his hand when he was shot; that ax was the evidence is introduced and before the argusitting by the cistern, 7 or 8 feet from where ment is begun; fourth, errors, if committed, he fell. 'Beauchamp ran his hand in his pock- will require a reversal 'if calculated to injure et; I am sure he didn't have any ax in his the rights of the accused or deprive him of a hand; the only thing Beauchamp did was to say fair and impartial trial; fifth, it prohibits the what he did and run his hand in his pocket." judge from discussing the facts or using any Jim Click further swore:

arguments in his charge calculated to arouse

the sympathy or excite the passions of the jury "Immediately after Beauchamp was killed I(C. C. P. art. 736); sixth, it prohibits the court took charge of that house. I took charge at Mc- from giving any charge of any sort in a felony Gaughey's request and under his instructions case except in writing; seventh, this charge and before Mrs. Beauchamp got her things out must be delivered after the evidence is introof the house.

I didn't ask Mrs. Beau- duced and before the argument is begun." champ's consent to move in then; I didn't ask anybody's consent; John told me by legal au

Appellant made no such objections. Be thority to go in there."

low we quote his objections. The jury were clearly authorized, by all

A complete and perfect answer to all this the evidence, to believe beyond a reasonable is that what the trial judge said was not a doubt, as they did, that Jim Click's testimony charge of any kind or character in this case, as to appellant's claimed self-defense was

and by no hocus pokus can it be construed to

be. false; that he saw and heard nothing of the

Appellant neither in the lower court, killing; that his testimony tending to show nor in this, so claimed or intimated. In the self-defense was wholly manufactured; and original opinion we quoted in full, word for that there was no self-defense. The evidence word, what the trial judge said to the jury as a whole also authorized the jury to be panel, only four of whom were on the jury lieve beyond a reasonable doubt, and the pre

in this case. We also quoted in full his ponderance of it clearly showed, that the qualification of appellant's bill complaining murder was deliberately planned, coolly exe

thereof. We did not then quote, but we now cuted, and the body of the deceased, after quote in full, word for word, the objections

he made thereto: he was lying prostrate on the platform, dying, if not dead, was horribly mutilated by speech and delivering said lecture, to the jury

“To which action of the court in making said appellant with the ax in a most brutal man- immediately before the defendant was required ner. The wonder to us is that appellant es- to announce ready for trial, the defendant then caped with so light and short a term in the and there excepted upon the ground that said penitentiary.

lecture was detrimental to defendant's rights

and was calculated to lead the jurors for the But after the adjournment of the court, week to believe that the court desired them to and after all jurisdiction of this case, as convict, and that, in the event they did convict stated, had passed from this court, we are protect the rights of the defendant, and the

in an improper case, the court would thereafter shown a dissenting opinion, filed after the jurors .were therefore much more ready to con. term had ended, in which it is claimed in ef- vict than they would have been but for the said fect that the "speech or lecture,” as desig- lecture, and but for belief that the court would nated by appellant, but, as designated by the rectify any error that they committed in con

And the defendant here now tenders dissenting opinion, the “verbal charge,” was his bill of exceptions and asks that the same be a charge to the jury in this case. We do approved and filed as part of the record in this not know how it can be possibly be claimed

case.that what the judge said to the jury panel

As shown above, when this case was subwhen he organized the jury for the week mitted, appellant's attorneys, in oral arguwas a charge to the jury in this case. Only ment, claimed that this speech or lecture, four of those who heard it were afterwards heard by only four of the jurors, was inselected on the jury that tried this case. jurious to their client and reversible error, There is no intimation by this record that but not because it was a charge in this case. the other eight heard it, or ever heard that They did not claim it was a charge in this the judge had said anything to said jury case. They then cited in oral argument said panel. The only charge the court gave the four cases of Jones v. State, 51 S. W. 949; jury was the written charge in this case to Attaway v. State, 41 Tex. Cr. R. 395, 55 S. which there was no shadow of objection in W. 45; Chapman v. State, 42 Tex. Cr. R. this or the lower court. In it he told the 135, 57 S. W. 965; and Murphy v. State, 57 jury in this case:

S. W. 967. They cited and relied upon these "You are the exclusive judges of the facts four cases in their written brief. We called proved, of the credibility of the witnesses, and attention to them in the original opinion. of the weight to be given to the testimony, but The dissenting opinion again cites these four you will receive and be governed by the law as given you in charge. I therefore proceed to cases and claims that the decision in this give you the law applicable to the facts of this case, and in the case of Reed v. State, 168 case for your guidance."

S. W. 541, recently decided, are in conflict therewith. We said in the original opinion, , Judge Davidson in the latter. Judge Henand say now, that they are not in conflict derson vigorously dissented in both. herewith, and neither of them is.

But let us see what Judge Thompson did We did not before give what was said by say to the jury in each of said four cases. the trial judge in said four cases. Neither We will not copy all of it, but will copy does the dissenting opinion; but we will now enough and the material parts, so as to contake up each of them and show what the clusively show, as we said in the original judge said to the jury in each. In neither of opinion herein, that what he said to the juthose cases is the whole of what was said ries in those cases is nothing like what is by the trial judge to the jury given in full in complained of as what Judge Oxford said to any one of them. Different portions are given the jury panel in this case. What Judge in the different opinions. But they all show Thompson said to the jury in each of those that identically the same thing was said in cases was this: each case by the trial judge. All of those We take this quotation from the Jones cases were tried in the court below before Case: the same learned, eminent, and able district "I want to call your attention to the law of judge, Wells Thompson. Evidently he had reasonable doubt, what is frequently urged as

defense for crime, and which will be urged in prepared in writing what he said to each of most, if not all,' cases that will come before the juries in those cases and said the same you while you are the jury for this week. I thing in each.

will give you this charge upon these subjects We take the cases in the order in which giving it to you in the particular cases that

here now, because the law restricts me from they were decided. The opinion in the Jones arise as they arise. What is meant by reasonCase was written by Judge Brooks on June able doubt is not any mere supposition, but is 7, 1899. In that case appellant was convicted one that arises and is founded upon the evi

dence of the case. Shrewd lawyers urge and for assault with intent to murder. The court represent to jurors in the trial of cases that, if afirmed that case; did not reverse it, al- there is any doubt in the case, the defendant though Judge Thompson gave the same should be acquitted, and urge 'the old saying

that it is better that ninety and nine guilty charge in that as in the three other cases.

men go free than one innocent man be convictThis court in that opinion unquestionably ed, and upon this doctrine, and upon the unlaid down the law applicable. It is:

reasonable extension of the defense of reasonable “But we desire here to emphasize what we ed loose upon society in Texas. I don't think

doubt, thousands of criminals have been turnsaid in Gaines v. State (38 Tex. Cr. R. 202] I ever saw an innocent man convicted. We 42 S. W. 389, to wit: 'However improper and hear of them now and then way off, but, like indelicate such expressions as are here attributed to the judge may be, they do not of them- the bag of gold at the end of the rainbow, when selves afford a ground for reversal of the cause.' I think every right-thinking man thinks with

we approach they vanish. Now, I believe, and As was said in McCauley v. Weller, 12 Cal. 500: 'If the judge act illegally on the trial; me, that it is better that an innocent man be or deny the prisoner his legal rights, this would convicted now and then than that 99 bloody for reversal.

The

murderers, burglars, and robbers be turned loose most that can be said is that such conduct will doubt, as urged by shrewd lawyers in this state,

upon the country. This doctrine of reasonable cause a closer and more rigid scrutiny of the er- has no application, and should have no weight rors complained of."

with jurors. Our laws are intended for the We invite a reading in this connection of protection of society, and, while they do not the Gaines Case, cited by Judge Brooks. It aim in any instance at the conviction or punwas shown in that case that the district importance to you and me that the guilty do

ishment of the innocent, yet it is of the highest judge there denounced the act of Gaines in not escape through the influence of such sopheffect, as a cold blooded assassination, and istry as I have called your attention to, which, that he should be hung. He reiterated this in the great majority of cases, when urged as a to the newspapers, which published it. He in homicide, to which I will call your attention,

defense, is like the famous hip-pocket defense at no time retracted what he said of the is a manufactured and fictitious defense; and, defendant in that case. This court, in pass- whenever the jurors see such defenses raised to ing on that case, correctly held, as stated by duty, as the judges of the fact, to disregard it,

shield the guilty criminal, it is not only their Judge Brooks:

but to disregard it altogether. If the innocent “However improper and indelicate such ex- man is convicted, he can appeal to the higher pressions as are here attributed to the judge courts, and get his case righted. By reasonable may be, they do not of themselves afford a doubt is not meant an ordinary doubt, not any ground for the reversal of the cause."

small doubt, but a doubt arising out of all the

testimony. I charge you to recollect these mat· The next case decided was the Attaway ters, and be guided by these general instructions Case, on January 17, 1900. The opinion was in the trial of each and every case that shall by Judge Henderson. He expressly held that be submitted to you in which such matters will the address of Judge Thompson to the jury conform to them; and if you, as jurors, are

arise, and hope that your conduct as jurors will was not reversible error, and reversed the guilty of any improper conduct, I will give case on another entirely distinct and sepa- you notice right now that the one or ones so rate ground. The other two judges, however, guilty will be fined not less than $100, and the said that the case ought also to be reversed one so fined will not get it remitted?" on what Judge Thompson had said.

We take this quotation from the Chapman

Case: The other two cases, Murphy and Chapman, were decided on the same day. Judge in evidence in almost every case that is now

"There is a defense for murder that is put

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