Appeal from district court, Bexar county; G. H. NOONAN, Judge.
HURT, J.
Appellant was convicted of murder in the first degree, and the death penalty assessed. To a clearer understanding of the case, we deem it necessary to give a statement of the facts developed on the trial below:
J. M. George, for the state, testified: "I live at West End, San Antonio, Bexar county, Texas. I knew the deceased, William Robinson, in his life-time. He had been working for me five or six months. He was living at my house. His wife lived about a mile from me, at the edge of town, near the I. & G. N. Railroad track. I last saw deceased alive about six o'clock on the evening of June 30th. I paid him off then, and he was going to town to buy some things to take home with him. When I saw him again, next day, he was dead. He had been cut three or four times in the left breast, in the region of the heart, — once in the right breast; and his throat was cut from the ear, around the throat, to nearly the opposite side. He was also cut in the bowels. I know the knife that deceased carried. I had seen him with it quite often, working in my garden with it, pruning and cutting trees and rose-bushes. I had his knife quite often in my hand. I would take it from him to show him how to do the work." (A pocket-knife, hereafter shown by the testimony of A. J. Smith to have been taken from the defendant, was here shown the witness.) The witness then said: "This is not the knife of deceased. I never saw the deceased with such a knife, or knew of his owning such a one. His knife was much smaller than this one." Cross-examined: "I cannot say that deceased did not have this knife. I never saw him with it. He might have owned it without my knowing it."
Dr. George Clifford, for the state, testified: "I am county physician of Bexar county. I found on his body four cuts in the left breast, in the region of the heart; one on the right breast; a cut in the abdomen, from which the bowels protruded; and his throat was cut from a point commencing near the left ear, circling round the throat, to nearly the opposite side, severing the windpipe and both jugular veins. I don't think the breast wounds would have been necessarily fatal. The throat-cut severed all the arteries and the windpipe, and produced immediate death. After the throat-cut, deceased would not have been able to speak or utter a cry. I examined the body at the instance of the coroner. I did not examine the back of deceased for any wounds. The coroner merely wished me to ascertain the cause of death. The wounds were all made with a sharp, pointed instrument." The knife heretofore referred to was here shown the witness, who said: "All the wounds could have been made with an instrument like this, or with this knife. I found the body lying in Bexar county, Texas." Cross-examined "I had occasion to examine the defendant. My examination was made to see whether he should remain in the hospital or be
removed to the county jail. The defendant had been cut, and his bowels protruded. They were replaced and the wounds stitched up by Dr. Oldham. The wounds were made with some sharp, pointed instrument. They could have been made with the knife shown me. The wound was about two inches long, and a dangerous one. I examined him after he had been operated upon."
Mrs. Maria Burks, for the state, testified: "I knew the deceased for a long time. He is dead. I knew his wife, Emma Robinson, and the defendant. Have known defendant for some months. I was living near Robinson's at the time he was killed, — about a block from them. I had been living there one month and one week before the 16th of June. Emma Robinson was living there before I moved next to them. I remember the night William Robinson was killed. It was on Saturday night, May 30th last, about two o'clock. At that time Emma Robinson came to my house, and rapped at my door, which woke me and my husband up. She came in with her four children. When I opened the door she ran with the children. She was excited, — caught me around the shoulders; the children catching me around the waist. She said defendant and deceased were in the house, fighting. A moment or two after I opened the door, I heard screams of pain in the direction of Robinson's house. The screams were: `Oh! Oh! Oh! Help!' These screams were made by the voice of William Robinson. I recognized them at the time, and said: `My God! That is Billy screaming!' The screams were on the outside of Robinson's house, and didn't sound as if made at the same place, but as though they were going away, further and further, down towards the railroad track. Then, when the screams ceased, everything was quiet. I afterwards saw the body of the deceased, that same night, before it was moved. It was lying near the railroad track, not far from Robinson's house. This was the same direction from which I heard deceased screaming. When I went there the justice of the peace had come. I tried to help lift the body. His throat was cut, and he was cut all over. I went to Robinson's house afterwards. There was some blood on the sheets in the front room. I have seen deceased at Robinson's house four times. Robinson would not be there. Once I saw him in the back room, eating. This was the room in which the meals were taken. The other three times I saw him lying down on the bed in the front room. I know Franklin's knife. It is a large, black, wooden-handle pocket-knife, with two blades." The knife heretofore referred to was shown the witness, who said: "That is Franklin's knife. I know that knife. I borrowed it from him four times, — once to cut my corns, twice to cut tooth-brushes, and once to cut an orange. Every time I borrowed it, I told him he had no business carrying such a knife; that it was an awful knife, and he ought not to carry it. All this took place in Bexar county, Texas." Cross-examined: "Once I saw Franklin eating at Robinson's. I can't remember the date. The other times I saw him there, he was laying down on the bed. He wa'n't bothering nobody when I saw him there. I can't tell the dates he was there, but it was just four times. One of the times must have been Thursday or Friday before the killing. I don't know the dates I borrowed Franklin's knife, but I know it was four times. Of course I know what I borrowed it for each time. Once when I borrowed it, there was a woman there. She stopped in as she was going by, to rest. I don't know her name. I passed her once since on the street near Wolfson's store. G. Smith was there once when I borrowed the knife. He lives here in town. I saw him here this morning. Franklin had been in my house five or six times after we moved next to Robinson's, and he had been at my house before we moved. My husband first brought him there. He said he was tired several times, and I made him down a cot to rest. This would be in the day-time. His work was at night. He got too familiar with me, and I sent him away about his business and wouldn't let him stay about the house any more. I didn't tell my husband that Franklin had tried to be too familiar with me, and one Sunday, after I had sent him away, my husband brought him back, and let him rest on a cot in the back room; and, as soon as I saw him, I made him get up and leave, and told my husband I didn't want him about there. It was exactly two o'clock when Emma Robinson came to my house. My clock is not a striking clock. I don't know that it was right; but I do know it was two o'clock, because I looked at it."
A. J. Smith, witness for the state, testified: "I knew William Robinson for a long time. I lived about 25 feet from his house at the time of his death. I knew the deceased [defendant] about one week before the killing of Robinson. I had a reception at my house on the night of the killing. This was on Saturday night, May 30, 1891. The reception was going on when I heard talking going on in Robinson's house. This was between one and two o'clock in the morning. Then I heard a rumbling kind of noise in the house. I was in the front of my house when I heard the rumbling noise. I took notice. I then heard cries in the house, and saw two men coming out of Robinson's yard. One man was ahead of the other. The man at the rear was hitting at the man in front. I could see him raise his hand and strike, and I could hear the sound. It sounded like a man hitting his fist on a piece of plank. Every time the man in the rear would hit, the man in front would cry, `Oh!' I recognized the voice of the man in front to be that of Robinson. The man in the rear was Franklin. I took it to be him, because he was the tallest of the two. When they got across the railroad track, — a distance of about 25 steps from Robinson's house, — they fell down; and I could still hear the licks, followed each time by the exclamation, `Oh! Help!' They then seemed to be in a bulk. The last I heard was a gurgling sound, and then the cry ceased. I then saw a man get up from the bulk and come towards me. I stepped
back to my house, and the defendant same along the railroad track, towards me. This was the same man who got up from the place where the man was crying, `Oh!' and where the deceased was found. There was no other person there. He had a bloody knife in his hand, and I took it from him." The knife heretofore identified by the witness Mrs. Burks was here shown the witness, who said: "This is the same knife I took from defendant. The blood on it is now dry, but it was then wet and fresh with blood. I turned the knife over to the police when they came. The ground from Robinson's to the railroad track was rough, — kinder down hill, and weedy. I went with defendant to Fest's store. John Fumeny and Charley Moore went with me. Some...
