Irby v. State

• Decision Date: 10 March 1888
• Citation: 7 S.W. 705
• Parties: IRBY v. STATE.
• Court: Texas Court of Appeals

7 S.W. 705

IRBY v. STATE.

Court of Appeals of Texas.

March 10, 1888.

Appeal from district court, Rusk county; J. G. HAZLEWOOD, Judge.

This conviction was in the second degree for the murder of David Needham, in Rusk county, Texas, on March 16, 1886. A term of 16 years in the penitentiary was the penalty awarded. The state proved, by the father of the deceased, that his (witness') and defendant's fields were separated by a lane. While plowing in his field on the morning of March 16, 1886, he heard a pistol shot fired from the direction of defendant's field. The defendant soon ran into witness' field, and called to witness to "come here." Witness went to the lane, where he found his son lying on a blanket, shot through the face. Defendant, who was present, with James Irvin and Pete Youngblood, said that deceased shot himself. Deceased then endeavored to speak, but failed. Fifteen minutes later he said, with difficulty, to witness: "I did not shoot myself. Jim Irby shot me, and tried to kill me. He did not think I could get here." Deceased was taken home, and lingered until March 22d, when he died. Every day after he was shot, and before he died, he declared to witness that he would die; that if the wound did not kill him, he would starve to death. He was unable to eat, and did not take three spoonsful of liquid nourishment after he was shot. He told the doctor once that he wanted to live to kill Jim Irby. Before his death, he told witness that defendant came to him in witness' field, and told him that he had a pistol in his, defendant's, field which he wanted to sell him, deceased; that he went with defendant to an old seed-pen in his field; that defendant got into the pen, while he stood at the door, scuffled around in the seed, and found a pistol, which he extended towards his, deceased's, face, and asked, "Isn't she a beauty?" that he replied that it looked like a "dog knot;" that defendant then fired the pistol, and shot him, and tried to shoot him again; that he seized a rail to defend himself with, but was unable to use it; that he then asked defendant not to shoot again, and that defendant ran off towards witness' field, exclaiming that deceased had shot himself. This witness declared that he and defendant had been on speaking, but bad, terms, and that the deceased and defendant had been unfriendly for three months prior to the shooting. Joe Goodman testified, for the state, that in January prior to the shooting defendant told him to tell deceased not to come to his house again, as he might say more to him than he ought, and that he would not hesitate a minute to take his gun to deceased. Several witnesses for the defense testified to the close and apparently friendly association of the deceased and the defendant, and the fact that deceased visited the defendant's house on friendly terms up to a very short time before the shooting. Defendant's son testified that a few days before the shooting deceased offered to purchase a pistol from him, and had agreed to examine his pistol at some future time. The son-in-law of defendant testified that a day or two after the shooting he found a small pistol in the seed-pen, one of the chambers being empty. Two or three witnesses testified for the defense that, when digging the grave for deceased, Goodman was asked about the threats which he claimed to have heard defendant utter, and that he denied that he ever heard defendant say anything more than that he did not want deceased to visit his house. The statement made to Dr. Longmire was substantially the same statement made by deceased to his father, detailing the circumstances of the shooting. The excluded evidence was to the effect that, on the Sunday before the shooting the deceased proposed to trade for the saddle of one Edwards, and told Edwards that he was then negotiating a trade with defendant for a Smith & Wesson pistol, and that, after he had completed that trade, and got the pistol, he would give it to Edwards for the saddle.

Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

1. There was no error in admitting in evidence the statements made by the deceased to his father 15 or 20 minutes after he had been shot. These statements were made as soon as deceased could talk,...