Ainsworth v. State

• Decision Date: 17 June 1891
• Citation: 16 S.W. 652
• Parties: AINSWORTH v. STATE.
• Court: Texas Court of Appeals

16 S.W. 652

AINSWORTH v. STATE.

Court of Appeals of Texas.

June 17, 1891.

Appeal from district court, Trinity county.

J. P. Stevenson and B. F. Bean, for appellant. R. H. Harrison, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction of murder in the second degree, the punishment being assessed at 15 years in the penitentiary. It appears from the record that a previous trial of this case had been had in the district court, which resulted in a mistrial. Defendant made an application for a continuance based upon the absence of four witnesses, two of whom, under process of court, were brought into court and testified in the case. The other two were Martha Reese and P. M. Teeter, Sr. Martha Reese was under attachment as a witness in the case. She had testified at a previous trial, which resulted as aforesaid in a mistrial. Her testimony was in substance "that she was present at the time the deceased, Jeff Mecham, was shot at the festival, at the time of the shooting, and some time afterwards. That immediately before the shooting she saw there was a difficulty, and, thinking her brother was involved in the difficulty, she ran up to the edge of the platform, and just as she got to the edge of the platform she saw a man shoot, and immediately after the shooting the man ran off with a pistol in his hand, and she ran after him, believing he had shot her brother. She pursued him until he ran behind a brick kiln, said brick kiln being about 50 yards from where the shooting occurred. That the reason she followed him was that she thought that her brother was shot, and she wanted to identify the man who did the shooting." The witness Teeter's testimony was desired by the defendant simply to prove the reputation for truth and veracity of Frank and Dick Wilburn, two of the principal state's witnesses against him. In qualifying the bill of exception reserved by the defendant to the overruling of his application for a continuance the learned trial judge says with regard to the witness Martha Reese: "The court did not believe her evidence probably true, having heard her on a former trial. She being an uneducated negress, who has since left the county, and as at the hearing of the case, and the large number of witnesses who were present and many other parties having been shown to have been present, nothing was disclosed to show that anybody else had seen any such occurrence as she claimed to have seen, and that she, mid the shooting and...