
    Richard Burleson v. The State.
    
      No. 1004.
    
    
      Decided October 27.
    
    1. Murder. — Continuance.—On a prosecution for murder, an application for continuance which shows a total want of diligence and is improbable in the statements proposed to be proved, and which statements defendant himself has contradicted by his own testimony as to the matters stated, will be held properly overruled.
    2. Same — Death. Penalty — Evidence.—See evidence stated, which, though circumstantial, is held, in the opinion of the court, amply sufficient to sustain a conviction for murder of the first degree, with the death penalty.
    Appeal from tbe District Court of Limestone. Tried below before Hon. Rtjeus Hardy.
    Appellant was indicted for tbe murder of J. G. McKinnon, in Limestone County, on tbe 2nd day of May, 1894. Tbe trial resulted in bis conviction of murder of tbe first degree, bis penalty being assessed at death.
    Appellant made an application for continuance, wbicb was overruled. Tbe facts pertaining to this matter are sufficiently stated in tbe opinion.
    Tbe deceased, McKinnon, was a white man, 65 years of age; defendant a negro. Tbe killing occurred about three miles from tbe town of Mexia, in Limestone County, and about 3 o’clock p. m. on tbe 2nd day of May, 1894. McKinnon bad gone to town that day in bis wagon to make some purchases. Among other articles purchased by him were 1035 pounds of bran. Tbe articles purchased by him were bought from tbe clerk at tbe Alliance store. After completing bis purchases, be banded tbe clerk a twenty-dollar bill to pay for tbe same, and the clerk not being able to give him such change as be wished, McKinnon went to tbe bank and bad bis money changed into two ten-dollar bills. When be returned to tbe Alliance store be banded tbe clerk one ten-dollar bill out of wbicb to take bis pay for tbe articles purchased. He carried bis money in a little sack, and one of tbe witnesses saw a coin piece in tbe sack wbicb be took to be a five-dollar gold piece. Defendant was present at tbe Alliance store and saw tbe deceased pay for tbe articles purchased, and be helped tbe deceased to load tbe bran into bis wagon. Soon after this, deceased started home in bis wagon. Defendant was seen by several parties following after tbe wagon up to near tbe place of tbe homicide. One or two of these parties knew him, and be was identified by all of them at the trial. He bad two large rocks in bis band. He bad what tbe witnesses call “a jumper” roundabout, or jacket, on bis arm, and was in bis shirtsleeves. Mc-Kinnon was killed by having bad bis skull crushed with some heavy instrument, having received several blows, two or more of which caused mortal wounds. He was found insensible in the road by some parties coming along, who also saw at tbe same time a party running off, some 150 or 200 yards down tbe road. He was in bis shirtsleeves, but they could not tell, owing to tbe distance, whether be was a white or black man. There was tbe imprint of a man’s knee upon tbe ground close to tbe body, and not very far off from tbe body tbe witness Lewis found in tbe road the “jumper” or roundabout jacket. This jacket bad some patches on it, tbe sewing of which bad evidently been done by a man. When McKinnon’s body was found it was searched, and there was no money upon bis person. Defendant was arrested in Corsicana tbe next day. He denied having any money. TJpon being searched, be was found to have upon him a ten-dollar bill and a five-dollar gold piece, together with some other coins. He made several different contradictory statements as to bow be came by tbe money. His bouse was searched, and underneath some other clothing banging upon tbe wall was found a pair of jeans pants similar to tbe ones that be bad been wearing at tbe town of Mexia on tbe day of tbe killing, and these pants bad dirt or mud on one of tbe knees, as well as fresh blood-stains. In bis bouse was also found a shirt which was still moist with perspiration, as if it bad been recently worn; and this shirt bad also fresh blood-stains upon it. Tbe shirt bad also been patched, tbe patches having been sewed on by a man; and these patches, in tbe material used and character of tbe sewing, corresponded exactly with tbe patches and sewing found upon tbe roundabout jacket or “jumper.”
    No brief for appellant.
    
      B. L. Henry, Assistant Attorney-General, for tbe State.
   SIMKLNS, Jtjdg-e.

Appellant was convicted of murder in tbe first degree and bis punishment fixed at death, from which be appeals.

Tbe court did not err in overruling tbe motion for a continuance. There is not tbe slightest diligence shown by appellant in procuring tbe attendance of tbe absent witnesses. Tbe homicide occurred May 2, 1894, and on tbe same day appellant was arrested and placed in jailin a neighboring county. On August 9th an indictment was found, and upon tbe 20th of August be was brought back to Limestone County for trial, and counsel was appointed by tbe court.' Tbe case was called for trial on September 3rd; no subpoena or other process was demanded or issued. Appellant claims in his application that he won the money found on his person at the time of his arrest, at gaming, from two other negroes who passed by while he was at work. That he had never seen them before nor since; nor did he know their names or hear them name each other; nor did he know where they lived. The money so found corresponded with that seen in possession of deceased immediately before the homicide. We think the application presents neither diligence nor sufficient grounds for a continuance. But apart from the improbability of the statement, appellant admits on trial, that when he was first arrested he denied having any money in his possession, and when the money was found he claimed to have gotten it from his employer, and when this was shown to be false, claimed he got from his wife, and not until the trial does he claim to have won the money from two strangers. We do not think the court erred in overruling the motion for a continuance.

The testimony is circumstantial, but is sufficient to sustain the verdict. It shows that deceased was in possession of money, and defendant was present and saw the money when deceased paid for some purchases. Deceased started out southeast from town and was followed by defendant, who lived west from town, and the parties were seen three miles from town, the defendant still following deceased, who was driving a wagon, and defendant on foot with a rock in his hand. Deceased was murdered and robbed. Shortly after, and on the same day, defendant was arrested, and money corresponding with that seen in possession of deceased shortly before was found on defendant, who denied he had any money, and then gave conflicting accounts; and upon clothes found at his house were fresh blood-spots. The record presents a cold, bloody murder, for the purpose of robbery.

The judgment is affirmed.

Affirmed.

DavidsoN, Judge, absent.  