Estrada v. State

• Citation: 15 S.W. 644
• Parties: ESTRADA v. STATE.
• Decision Date: 01 November 1890
• Court: Court of Appeals of Texas

15 S.W. 644

ESTRADA v. STATE.

Court of Appeals of Texas.

November 1, 1890.

Appeal from district court, Wilson county; GEORGE McCORMICK, Judge.

In substance, the state's witnesses testified that the defendant, the deceased, and one Martinez were among the guests at a party at the house of one Alderete, near Floresville, on the night of the homicide, February 17, 1889; that at about 11 o'clock the deceased and Martinez, upon the suggestion of the latter, retired from the house to a point about 150 yards distant to settle a dispute; that when the state witnesses and others reached the parties they were struggling each for the possession of the other's quirt; that the parties were separated by one Zerda; that immediately afterwards, while Zerda had hold of deceased, the deceased struck Martinez a severe blow on the head with the heavy iron handle of his quirt, felling him; that about that time the defendant appeared upon the scene, pistol in hand, and demanded to know who had struck Martinez down; that upon being informed he advanced upon deceased, and as the deceased retreated, striking at him with his quirt, he fired upon deceased three times, shooting him fatally through the head; that he then rode off, exclaiming that he yet had three loads in his pistol which he would give to any of the deceased's friends who felt like taking up the difficulty. The defense witnesses testified that the deceased was still striking Martinez with the quirt when the defendant reached the scene; that defendant merely waved his hand at deceased, asked him to desist, and stated that he had punished Martinez enough; that deceased, exclaiming, "The same to you; I will do you up," rushed upon defendant, and struck at him with the iron end of the quirt; that defendant then drew his pistol, and commanded deceased to stop his advance; that, deceased continuing to advance and to strike at defendant with the quirt, the defendant fired his pistol into the air, and repeated his command to deceased; that deceased continued to advance and to strike at defendant, when defendant again fired into the air; that deceased, unappalled by the shooting, continued to advance, and struck defendant several blows on the arm, and continued to strike at him with the quirt, which, as used, was a deadly weapon, when the defendant fired the third and fatal shot. Rubio was one of the witnesses who testified to these defensive facts as observed by him at the time. To impeach Rubio, one Cecilio Maldavado testified that she attended a...