Hines, Alias Burton v. State

DAVIDSON, Judge. Appellant was convicted of- the murder of Emelie Meyer, and his punishment assessed at death, and from this conviction he prosecutes an appeal. In the motion for a new trial it was urged that the court erred in not charging on alibi. In this respect the charge as given is as follows: “If you entertain a reasonable doubt as to whether defendant was present at the time and place when and where said Emelie Meyer was killed, then find said defendant not guilty.” This, as we understand it, is a charge on alibi. Another ground of the motion is predicated upon the failure of the court to charge the jury “the law relating to the possession of the watch alleged to have belonged to Henry Meyer.” The evidence discloses that *27 the murderer of Emelie Meyer also killed her husband, Henry Meyer, and one of their children, at the same time, and also made a deadly assault upon another young boy, Gotlieb Meyer, who escaped, and subsequently recovered from his wounds. Among other things, it was shown that the defendant had a watch that was shown to have been in the possession of Henry Meyer at the time of- the killing. This is the watch in regard to which appellant contends ¿he court should have charged the jury. The contention seems to be that if the identification of defendant as the slayer of deceased was not sufficiently proved by Gotlieb Meyer, or otherwise than by the watch, the court should have instructed the jury “that it was not alone sufficient to connect him with the crime charged in the matter aforesaid.” This theory of defendant is based upon the supposition that this was the only evidence in the case that tended to connect him with the murder, if the testimony of Gotlieb Meyer was discredited by the jury. This, in our opinion,, would have afforded no reason for the court to have singled out this particular fact, to the exclusion of the other facts in the case, upon the question of identification. He was not only identified by Gotlieb Meyer as being the man, but there are quite a number of other facts and circumstances in the case that tend strongly to identify appellant as the perpetrator of this homicide. We know of no rule that would require the court to single out each of the different facts that tend to identify or connect a party with a crime, and charge upon each separately. If the court were required to charge the jury with reference to the watch, the rule would have been equally as strong with reference to the testimony of Jim Jackson as to the possession of the cap subsequent to the murder, which appellant had prior to the murder obtained from Willis Dow; and also as to the fact that his discarded shirt was found a few hundred yards distant from where the homicide occurred; as well as other circumstances in the case which tended to connect him with this offense. The remaining question presented by the motion for a new trial is based upon the supposed insufficiency of the evidence-of Gotlieb Meyer to identify the defendant as the slayer of the deceased. We do not concede the correctness of this contention. An inspection of the testimony shows the identification of defendant by this witness, and, independent of his testimony, the circumstances are strong and cogent, and, in our opinion, would have justified the conviction of appellant. As we understand this record, ‘the verdict can be sustained alone on the testimony of the witness Gotlieb Meyer, or on the circumstances, aside from this testimony. Certainly there can be no question that the positive and circumstantial evidence together fully support the verdict. The purpose of appellant in the commission of this crime seems to have been robbery. To accomplish this, he slew Henry Meyer, his wife, and one of their children, and attempted to slay the witness Gotlieb Meyer, who fortunately escaped. It is not necessary to reiterate the details of this horrible massacre, but suffice it to say that the record discloses a crime rarely equaled *28 in atrocity. The jury entertained no reasonable doubt that appellant was the guilty party, and we see no reason to disturb their verdict. The judgment is affirmed. Affirmed. [Note.—Appellants motion for rehearing was overruled without a written, opinion.—Reporter.]