Kirby v. State

• Decision Date: 29 January 1887
• Court: Texas Court of Appeals
• Parties: KIRBY v. STATE.<SMALL><SUP>1</SUP></SMALL>

5 S.W. 165

KIRBY v. STATE.¹

Court of Appeals of Texas.

January 29, 1887.

Appeal from the district court, Jones county.

The indictment in this case charged that the appellant, on August 31, 1886, did, of his malice aforethought, kill William Glazner, by striking and beating him with a bar of iron. The jury found him guilty of murder in the second degree, and awarded him a term of 23 years in the penitentiary.

Drs. Andrews and Hollis, for the state, testified that they were physicians and surgeons, and on the night of August 31, 1886, examined W. Glazner within a few minutes after he received the blows which resulted in his death a few days later. There were five or six wounds on his head. The skull was broken in two or three places, one on each side of his head, and one at the back of his head near the base of the skull. These wounds were necessarily fatal, and produed his death. They seemed to have been inflicted with the sharp edge of some hard instrument. The witnesses saw a bar of iron in the cell. It was a foot in length, two inches wide, half an inch thick, weighed three pounds less one ounce, and was shaped NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE. A bar of iron being handed the witnesses, they recognized it as the one they saw in the jail. It was very bloody, and was wrapped with a towel very tight, and tied with a string. The iron was wrapped its full length in the towel and a considerable part of the towel hung loose at the small end of the iron, making a good handle if the iron was used as a bludgeon. Thus wrapped, the iron was a deadly weapon in the hands of a man of ordinary strength, if used as a bludgeon. Appellant and Joe Brown were locked up in the cage in the south end of the jail, when the witnesses went there on the night of August 31, 1886. Glazner, after receiving the wounds, was never able to communicate with any one. The wounds were inflicted in Jones county, Texas, and he died there some days later.

W. H. Smith, for the state, testified that about 8 or 9 o'clock P. M. of August 31, 1886, he was at the Star Hotel, about 65 yards north and a little east of the court-house of Jones county. The jail was in the north-west corner of the court-house. About the hour stated, the witness heard loud cries in the jail, and thought they were those of Glazner, whose voice he knew well. The cries were in tones of distress, as the witness thought, and said, "Help, boys! Help!" When the cries were heard, the witness, with Morgan Rhoads and others, ran to the jail, and looked in at the north-east window. Witness saw some one in night clothes stooping over another person in the corridor of the jail. Witness took the latter person to be William Glazner. He was prostrate, and the person in night clothes was striking him with something, and said: "Boys, I have done him up." This last voice was not recognized by witness. Other talk inside the jail was spoken in an ordinary tone of voice, but the witness could not understand what was said. Witness heard no one besides the deceased halloo or give alarm. Witness ran to get arms and help, and heard window glass breaking. Upon entering the jail it was discovered that Cannon was gone. Appellant and Joe Brown were in the south cell of the jail, and Glazner was lying on the floor in the corridor of the jail, and was very bloody, senseless, groaning, and uttering unintelligible talk. The corridor door of the jail was open.

Wiley M. Smith, for the state, testified that he heard the cries of distress in the jail about 8 or 9 o'clock P. M. of August 31, 1886, and thought he recognized the voice of William Glazner calling for help. The witness and several other persons ran to the north-east window of the jail, where they could look in. He saw some one prostrate in the corridor of the jail, and another person over him. Witness saw the latter strike the former one blow, and heard something said about "boys," but could not tell by whom it was said. Witness saw the man who struck the blows stoop down, and feel over the breast and person of the prostrate man, as if searching for something. He heard something said about killing, but could not tell what it was, nor by whom spoken. All he heard from the deceased was his cries and groans.

Morgan Rhoads was the next witness for the state. On hearing the cries at the jail, he and others ran over there, and just as he got there he heard some one say, "Don't shoot him," and something about "kill him," but witness could not get the sense of what was said. Witness, however, was certain he heard the words "don't shoot" and the word "kill," but did not know by whom they were spoken. He went off to arm himself, and then, returning, he went to the north-west corner of the court-house, when he heard some glass break, and saw some one run away from the south-west corner of the jail, dressed in white or night clothes and barefooted. The jail being entered, the defendant and Joe Brown, in their night clothes, were found locked up in the south cell of the jail.

H. A. McEachin was the next witness for the state. His testimony was in accord with that of the previous witnesses. He took possession of the bar of iron and the towel it was wrapped in, and kept them until he delivered them to Sheriff Scarborough. There were cuts through the towel where it was wrapped around the sharp edges of the large end of the iron.

G. A. Scarborough, sheriff of Jones county, testified, for the state, that he was absent from the county-seat at the time of the tragedy. He had left the jail and its three prisoners, Cannon, Brown, and the appellant, in the charge of Glazner, the deceased. When witness returned, Cannon was gone, and appellant and Brown were still in jail. It was the custom at the jail to unlock the doors to the cells in the day-time, so that the prisoners could take exercise in the corridor. The state closed by introducing the testimony of appellant before the coroner's inquest. This testimony is set out in full in the opinion of this court. No evidence was introduced by the defense.

Cockrell & Cockrell, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

While, by the indictment, appellant was charged directly with the murder of William Glazner, it is made to appear by the proofs that the wounds which caused the death were inflicted by the hand of one Add. Cannon alone, and that appellant's guilt, if at all guilty, depended upon the existence, at the time, of a conspiracy between Cannon, one Brown, and appellant, to effect their escape from the jail of Jones county, in which they were all confined; Cannon's act being claimed to be in furtherance of said conspiracy. In many of its features the case is quite similar to that of Watson v. State, 13 Tex. App. 160.

At the time Cannon inflicted the fatal blows upon Glazner, those two parties were in the corridor of the jail, while Brown and this appellant were locked in one of the iron cages or cells, from which, though they could hear and partly see what was going on, they could not actually assist in the bloody work. After its accomplishment, Cannon made his escape from the jail, leaving appellant and Brown still securely locked within their cage, where they were found by parties who had been alarmed by the noise made by, and who came to the rescue of, Glazner. A coroner's inquest was held upon the dead body of Glazner, at which both Brown and this appellant testified as witnesses, under article 998, Code Crim. Proc.; appellant's testimony, as taken in writing by the coroner, being in the following words, viz:

"My name is Ben Kirby. I have been in jail about five months at Anson, Jones county, Texas. I knew Add. Cannon; have been in jail with him for about a month. The only place I knew Add. Cannon was in jail, both at this place and at Colorado City, Mitchell county, Texas. I was confined in jail in Anson, August 31st, when Cannon killed Mr. Glazner. I had a conversation with Cannon before he killed Glazner. Cannon was to stay back of the door in the other cage; and, when Glazner came into the cage, Cannon was to come in behind, and close Glazner in the cage or inside the corridor. This agreement was made between all three of us, — Cannon, Brown, and myself. [A bar of iron was exhibited, and witness said the bar of iron was taken off from the cage on the twenty-eighth or twenty-ninth of August.] The bar belonged to the water-box in the jail. I heard some blows, but did not see who struck the blows. I could not see out of my cage only part of the scuffle between Cannon and Glazner. I saw the last blow struck by Cannon on Glazner. Cannon was striking him over the head with something; I could not see what it was. At the time Glazner was down, and Cannon over him, I called to Cannon not to murder the man, or something of the kind. He told us to `Shut up, you damned fools.' I never heard him say anything to Glazner. Cannon ran out, and tried to get out at the door. Then came back, and pointed his pistol he had taken from Glazner at Glazner's head, and told him to give up the keys. I told him not to murder the man; that he was already killed; but to go out and get away. He then went out and around the cage, I thought, and this was the last I saw of him. [Witness said he placed the bar of iron here exhibited under the water-closet the morning of the difficulty, and placed some water-paper around it, so it could not be seen.] This piece of iron was the one that Cannon was striking Glazner with. I saw him strike, I think, the three last blows with it. He struck Glazner over the side or back of the head. Glazner had no hat on when I saw Cannon striking him. The piece of iron exhibited was covered with a towel, and had fresh blood on it, and lay just in front of our cage where Cannon was beating Glazner. This is why I say it is the same piece that Cannon was beating Glazner

                with.                                     [Signed]      BEN E. KIRBY."
                

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