
    Ellis Southern v. The State.
    No. 105.
    Decided November 3, 1909.
    Murder — Insufficiency of the Evidence — Corpus Delicti.
    Upon trial of murder, where the evidence was not sufficient to show that the body found was that of the alleged deceased, and it was not shown that his death occurred by, through, or of the criminal agency or direction or act of the defendant, the conviction of murder in the first degree could not be sustained. See opinion for evidence which, while possibly sufficient to authorize the jury in finding that the body found was that of deceased, yet which fell far short in connecting the defendant with the murder of the alleged deceased.
    Appeal from the District Court of Fort Bend. Tried below before the Hon. Wells Thompson.
    Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life.
    The opinion states the case.
    Ho brief on file for the appellant.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   RAMSEY, Judge.

This appeal is prosecuted from a conviction had in the District Court of Fort Bend County on the 23d day of April, of this year, in which appellant was convicted of the offense of murder, and his punishment assessed at confinement in the penitentiary for life.

Only two questions are raised on the appeal, and these both raise the sufficiency of the evidence to support the verdict. In the first place it is urged that the testimony' is not sufficient to show that the body found was that of the alleged deceased, Jerry Williams, and, second, that it was not shown that- his death occurred by, through or of the criminal agency or direction or act of appellant. Ho synopsis of the testimony can fairly present these questions so as' to make a precedent of value to the profession. We, therefore, set out the testimony in full. It is as follows:

“J. C. Florea, County Attorney of Fort Bend County, Texas, testified:

“That on Sunday morning, January 31, 1909, he received word that a barn and some out buildings were burned near Clodine, a small town in the northeast part of Fort Bend County, and that the remains of a human being had been found in the ruins. That he and the deputy sheriff, Elmo Ransom, went to the scene of the fire. Upon their arrival at the scene of the fire they found that a large barn and a lot of farming implements, and some small buildings were completely destroyed by fire Saturday night. The barn was a frame building consisting of two large eorneribs with a driveway between them, and shed room on either side for stock. The witness did not know whether the barn had mow room over the cribs or not. In the ruins about two feet from where the north door to one of the cribs had been they found the charred remains of a human being lying across the tines of a pitchfork and some old wire, face up and the stubs of the arms indicating that the hands had been folded across the breast. The legs and feet were burned off within a few inches of the knees. That the bowels were oozing out of an opening in the belly. That the flesh was burned off of the face, exposing a set of small even teeth. That the frontal bone was mashed in between the eyes, apparently by some blunt instrument, and from the back and top of the head the brains had oozed out through a busted place in the skull. The witness stated that he was certain that the body found in the burned ruins was the body of a negro man, that he reached this conclusion after a thorough examination of the body. That nowhere about the body could he tell the color of the human being, but the skull was that of a negro. That the remains looked to be those of a person of medium height, with a full chest. The body was burned crisp all over except two patches on the cheeks of the buttocks which rested on the ground. These two patches of flesh were covered with burned clothing and were parched brown. On the body extending from the throat down the chest there were four rows of buttons of different styles. One kind were small dish buttons, another pearl buttons larger than the former, another row of metal buttons with the word UTiagra’ engraved thereon and also a locomotive, another row of large metal buttons like the buttons used on slickers. The witness stated he and the deputy sheriff gathered these buttons up, also a number of brass eyelets without hooks like those worn on laced boots or shoes, hob nails and brass screw brads like those used in fastening on boot soles, a barlow pocketknife and tin snuff box, and a metal piece off of the shank of a pipe. The iron frames of various kinds of farming implements were strewn over the ground near the body, also a heavy sledge hammer was found nearby. The witness stated that a short distance from the ruins stood a vacant tenant house, and from which trailed a mark to the ruins, as though something heavy had been drug on the ground. The witness stated he found no blood stains around the vacant building or on the ground about there.

“The State introduced dish buttons, pearl buttons, metal buttons with the word ‘Magra’ printed on them, and a locomotive epgraved thereon, and a large flat metal button like those used bn slickers, a tin snuff box, a metal piece off of the shank of a pipe and some hob nails and brass brads like those used in fastening on boot soles, and a barlow poeketknife, all of which the witness identified as being found on the dead body by him and Elmo Ransom.

“Elmo Ransom, deputy sheriff, testified to practically the same facts as Mr. Florea, except that he could not tell whether the remains were those of a white man or a negro.

“S. J. Winston, sheriff of Fort Bend County, Texas, testified: That he went to the scene of the fire Monday morning and began inquiring as to the probable offender, if any one at all, and he was informed that the defendant, Ellis Southern, had been seen leaving the Washington house Sunday morning going in the direction of the Figure Four ranch carrying a. suit case. That he and Jerry Williams were the only persons missing from the neighborhood. That he went to the Figure Four ranch and found the defendant and Phoebe Williams. That he found that suit case with these clothes in it (pointing to a suit case and some clothing that had been introduced) in the defendant’s room. That he arrested the defendant and Phoebe Williams and brought them to Richmond and placed them in jail. That the man who was then being tried was the same man.

“Bat O’Brien testified: That the defendant, Ellis Southern, and Jerry Williams, Lee Asmore, Lee Collier, Edgar Lindsey and Charles Washington worked for him the week the fire occurred. That he had known Jerry Williams about a year and that he had worked for him since last harvest. That Jerry seemed to be temperate in his habits and did not ■ run about much. That during harvest season Jerry gave him money to keep for'him. That Jerry used snuff and smoked a pipe. That the Saturday the fire occurred Jerry accompanied the witness to the train, he having gone into Houston that day and did not return until some time Monday. That he had not seen or heard of Jerry Williams since that Saturday. The witness stated he lived about 1200 feet from the Washington house and the Washington house was that distance from Clodine. That Clodine was about two and one-half or three miles from the Jones place where the buildings were burned.

“W. J. Weller, testified: That he lived in Clodine, Fort Bend County, Texas, where he kept a general store. That about 9:30 Saturday evening, January 30th, his attention was attracted by a big fire in the direction of the Jones place, which is about two and one-half or three mjles from Clodine. That when he saw the fire it was well under headway: That he had known Jerry Williams about a year. That Jerry was of medium height and full chested. That he had not seen or heard of Jerry Williams since the fire. The witness stated he kept barlow knives for sale exactly like the one exhibited and same brand, also jumper coat with buttons on them of the style and make of those exhibited. And also had often sold goods to Jerry Williams.

“J. A. Madden testified: That he lived about four hundred yards from the scene of the fire. That the buildings had been vacant since some time last December. That the buildings were burned some time Saturday night, January 30, 1909, just what time during the night he did not know as he went to bed early Saturday night and did not wake up until late the next morning. That the barn which was completely destroyed by fire was a large frame building consisting of two large corn cribs with a driveway between them and a big hay mow overhead, and shed rooms for stock round the sides of the cribs in which had been stored a lot of farm implements, the iron frames of which were -scattered about in the ruins. That he found the charred remains of a human being in the ashes a few feet from where the north door to one of the cribs had been. The body was lying on its back across the tines of a pitchfork and some old wire. The feet and legs were burned off up to within a few inches of the knees. The bowels were oozing from an opening in the abdomen. The hands were burned off and from the position of the arms it looked as though the hands had been folded across the breast. That the flesh was burned off of the face leaving exposed a set of small-even teeth. The frontal bone was crushed in, apparently by some blunt instrument. And from the back and top of the head the brains had oozed out through a bursted place in the skull, which looked as though it had been, caused by the fire. That after examining the ruins he sent one of his men to Clodine to telephone the sheriff about the fire. That quite a number - of people visited the scene of the fire that morning. That he was present when the county attorney, J. C. Florea, and deputy sheriff, Elmo Eansom, made an investigation. That they gathered up some metal buttons with the design of a locomotive on them, being the style button wore on ‘The Magra’ jumper coat, a snuff box, a metal piece which looked like a fastening off of a pipe, a barlow pocketknife, and some brass eyelets from a pair of lace boots or shoes. That he knew Jerry Williams and Ellis Southern. That Ellis Southern lived on the O’Brien farm at the Washington house near Clodine. He knew Jerry Williams about a year, when Jerry first came to that section of the country he worked for him. That Jerry was a negro man of medium height and heavy built, about fifty years of age. That he had not seen or heard of Jerry Williams since the fire. That he did not know whether the body found in the ruins was that of Jerry Williams or not. That quite a number of people visited the scene of the fire Sunday, but he did not remember seeing Lee Osbourn there that day. The witness stated that Clodine was about two and one-half miles from the Jones place where the fire occurred, and about one and one-half miles across the prairie.

“Lee Collier testified: That he, Ellis Southern, Lee Asmore, Edgar Lindsey and Charley Washington and Jerry Williams worked at Bat O’Brien’s the week the fire occurred. That he had been cooking at the O’Brien place for some time. That he had known Jerry Williams about a year. He did not know how old Jerry was, but his hair was gray. That Jerry had ‘good sound teeth, medium in size, and they looked sorter narrow to me.’ That Jerry was a full breasted, low ‘chunky’ and was pretty heavy set. That the last time he saw Jerry was about 7:30 Saturday night at the O’Brien place, where he ate supper; he stayed in the kitchen awhile after supper, then left telling me ‘He believed he would go over to the store and get some tobacco.’ That Jerry wore laced boots, a jumper, and carried a slicker on his arm. That it was about 7:30 when he left the house going in the direction of Clodine. That he had not seen or heard of Jerry Williams since that time. The witness stated that he heard Jerry say on Friday at dinner that he was going to make a point (appointment) with some woman who had promised to meet him in a ‘waste’ house in the bottom Saturday night. And that Lee Asmore told him ‘the way you are going there is no waste house,’ and that Jerry replied that there was one on the edge of the prairie. The witness said the Jones place was ‘pretty much on the edge of the prairie.’ That Ellis Southern left ’Brien’s place Saturday after dinner and did not return until about G o’clock that evening. That he did not eat supper at O’Brien’s but went to Clodine to mail a letter on the train going to Houston, which was due about 6:14. The witness identified the clothing exhibited as being Jerry Williams’ clothing. That Jerry complained about losing a watch some time before the fire occurred. That he (Lee Collier) was arrested some time after the fire occurred. That the sheriff found the watch in his (Lee-Collier’s) room between the mattresses of his bed. That he plead guilty to stealing the watch. The witness stated he was alone at the O’Brien place the night of the fire.

“Lee Asmore testified: That he, Jerry Williams, Ellis Southern and Charles Washington worked for Bat O’Brien. That he and Jerry Williams slept in the same room at O’Brien’s. The witness identified the clothing exhibited as being the same clothing Jerry Williams gave to the defendant Ellis Southern in his (witness) presence about two weeks before the fire occurred. That Ellis took the clothing home with him. That defendant lived on the O’Brien place at the Washington house with Plioehe Williams, Charles Washington’s sister. That Friday the 39th while he, Ellis Southern, Jerry Williams and Lee Collier were eating dinner Jerry Williams made the statement that ‘he was going down in the bottom to make a point (appointment) with some woman who had promised to meet him in a waste house,’- and witness told him there was no empty house in the direction he was going, and Jerry replied that there were some empty houses on the edge of the prairie and that he was going there and make a point (appointment) with a woman. That he did not hear Jerry tell Ellis that Friday morning the witness and they and some other negroes were standing around a fire in the field warming, that he (Jerry) was going to Houston Sunday and for Ellis to write to him at a certain address. The witness stated he left the fire before Jerry and Ellis left. That witness stated he did not know Jerry was married, and that he had told him he was not married. That Jerry wore a jumper with buttons on it like those exhibited, that Jerry wore a short black slicker with flat metal buttons on it like those exhibited, that he wore laced boots with brass eyelets like the ones exhibited, that Jerry had a barlow pocketknife exactly like the one exhibited, that Jerry dipped snuff which he carried in a tin box like the one exhibited, and also smoked a pipe with a metal piece on it like the one exhibited. That Jerry Williams did not run about much with the other negroes. He sometimes went over to the store of an evening.

“Charley Washington testified: That he lived on Mr.. O’Brien’s place in the. same house with his sister, Phoebe Williams, Sally Washington and his mother, and that Ellis Southern had been living there with Phoebe Williams. That Phoebe Williams and Ellis had had a quarrel about two weeks before the night of the fire, and that Phoebe left her house and went to work for Mr. Aker on the Figure Four ranch about four miles from Clodine. The witness stated that Friday morning while he and defendant, Lee Asmore and Jerry Williams were standing around a fire they had built in the field to warm by, Ellis Southern-told ‘Uncle Jerry’ that he was going to make a point (appointment) with a woman to meet him, Ellis, in a waste house Saturday night and that he would make a point with a woman for Jerry. That Jerry said he would go if Ellis would make the arrangements. Witness left O’Brien’s about 3 o’clock Saturday and did not return until Sunday evening.

“Alice McDonald testified: That she went over to Charles Washington’s house on the O’Brien’s place about 5 o’clock Saturday evening, January 30, 1909, to sit up with Sadie Washington ■ who was very sick. That between seven and eight o’clock that evening, about 7:30 as near as she could tell, Ellis Southern came to the house and stayed a while then left saying he was going to the store which is a short distance from the Washington house. He told Pathinia Washington that he would bring her back some oranges. That Ellis was gone a few minutes, probably fifteen or twenty minutes, when he came back to the house bringing some oranges with him. That he stayed in the house a few minutes and went out again, and she asked him where he was going and he said he was going to talk to Jerry Williams, that he had some business with him. That Ellis did not return until a short time before the train from From came, which is due at 9:57, as near as the witness could tell he was gone about two hours. That while he was gone she saw a fire toward the Jones place which she took to be a straw stack on fire. That when Ellis came back he asked her if she saw the fire and on being told she did and that she thought it was a straw stack on fire he said it looked too big for a straw stack, and that it looked like the Jones buildings. That Ellis helped witness move the sick woman from a chair after he came back, then said he would go over to the depot and see the train come in, but just as he was starting out the train whistled. Witness stated that when Ellis came in and helped her move the sick woman he did not seem to be excited or breathless like a person would be after running some distance. That he was calm and self-possessed.

“Phoebe Williams testified: That she knew Ellis Southern and Jerry Williams. That she and Ellis had been living together for about two years at her brother’s house on the O’Brien place. That she done Jerry Williams’ washing for him and Jerry came to the ■house after his clothes. That she and Ellis had a quarrel about two weeks before the fire occurred, and she left the Washington house and went to work for Mr. Aker on the Figure Four ranch about four miles from Clodine. That she had never seen the coat and vest and the two pair of pants at the Washington house, when she was there. That she was afraid of Ellis as he had threatened to kill her about some man, and was jealous of her. That she had not seen the clothes that were exhibited but two or three times, but she knew they were Jerry Williams’ clothes. The witness said she had seen Jerry Williams wear the suit of clothes two or three times when he was going to town. That Sunday, January 31, Ellis came to the Figure Four ranch where she was working and brought the suit case and the clothes exhibited with him. That she ask him why he brought Uncle Jerry’s clothes with him and he said Merry had gone to Houston and had given him the clothes to keep and if he did not come back he (Ellis) could have the clothes.’ That Ellis told her that the two Martin boys told Jerry they saw an officer looking for him. That Ellis stayed with her that night and that the next morning they were arrested and brought to Richmond and placed in jail.

“G-. W. Brantmer testified: That about 9 o’clock Saturday night, January 30, 1909, he saw a large fire in the direction of the Jones farm which is about two and one-half or three miles from Clodine. That he visited the scene of the fire the next day and saw the charred remains of a human being in the ruins, but he could not tell whether it was the body of a white man or a negro. That he had known Jerry Williams about a year. That he was a middle aged man of medium height and weighed about 150 pounds. That judging from the size and appearance of the body and from the teeth he ‘thought’ the body was that of Jerry Williams. That he knew the defendant who lived with Phoebe Williams at the Washington house.

“Lee Osburn testified: That he knew Jerry Williams about a year. That he met him at the train when Jerry first came to Clodine and that Jerry went home with him and stayed all night. That the next day Jerry went to work for Mr. Madden. That Jerry frequently after that came to his house and visited with him. The witness stated that Jerry had a small set of even teeth. That he was about fifty years old and of medium height and heavy set. That he went to the scene of the fire about 10 o’clock Sunday morning. That he saw the body in the ashes and it was charred beyond recognition, the flesh being burned from the face and the teeth showed plainly. The witness stated when he saw the teeth, “I says, them shore’s Uncle Jerry’s teeth.” He stated that the top of the head was mashed flat and the body burned to a crisp. That he did not remain at the ruins but a very short time. That he had not seen or heard of Jerry Williams since the fire. He did not know whether that was Jerry Williams’ body he saw in the ruins, but he was “shore them were Uncle Jerry’s teeth.” That witness stated that he did not know Jerry Williams was married until after the fire. The witness stated his hearing was defective, being partially deaf.

“Julia Williams, wife of Jerry Williams, testified: That she lived in Houston, Texas; that she was the wife of Jerry Williams; that she met Jerry Williams some months before at a church in Houston; that they were married December 27, A. D. 1908, and that Jerry and she lived together until January 1, 1909, when Jerry went to Clodine to go to work. That was the last she saw of him; that she did not know where he was; that he had written her two letters after going to Clodine; that he had promised her that he would come to Houston January the 30th or 31st, but he did not come. That Jerry had never failed to keep a promise with her before this time.

“Edgar Lindsey testified: That he was working in a blacksmith shop on the O’Brien place Saturday, January 30, 1909. That he knew Jerry Williams and Ellis Southern. That a while before supper Saturday evening Jerry Williams went to his room and went to sleep; about six o’clock Ellis came to the shop where he was at work and asked him if he knew where Uncle Jerry was, and he told Ellis that Jerry was in his room asleep. And Ellis said he did not want to wake him, and for the witness to tell Jerry that he had made the arrangements they had talked about and for him (Jerry) to meet him as he had agreed to. That he told Jerry at supper time what Ellis had told hini to tell. That Ellis did not stay for supper, but said he was going to mail a letter on the train going to Houston, which was due about 6:14 p. m. That evening after supper was the last time he had seen Jerry Williams. The witness stated that he was at the examining trial, but did not say anything about what Ellis had told him to tell Jerry until a short while before the regular trial of the defendant.”

There was no testimony offered by the defendant. It may be that the evidence is sufficient to authorize the jury to find that the burned and disfigured body found was that of Jerry Williams, with whose murder appellant stands charged. If,, however, this fact could be conceded, the testimony falls far short of being of that degree of cogency and directness as to justify us in upholding a conviction consigning any man, black or white, to prison walls for his whole life. A reading of the testimony will demonstrate that there was no motive shown, and that the sum of the criminative evidence is the possession by appellant of some clothing said to have belonged to deceased, and the fact that they were together with other persons on the evening of the fire, which almost consumed the body of the dead man. While this might raise some suspicion-, it falls so far short of that high degree of proof which the law requires that we cannot hesitate in believing it insufficient.

The judgment is reversed and the cause is remanded.

Reversed and remanded.  