Kidwell v. State

• Decision Date: 04 December 1895
• Parties: KIDWELL v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 342

KIDWELL v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1895.

Appeal from district court, Bosque county; J. M. Hall, judge.

Buck Kidwell was convicted of murder in the second degree, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant in this case was convicted of murder in the second degree, and his punishment assessed at 10 years' confinement in the state penitentiary, and from the judgment and sentence of the lower court prosecutes this appeal. This is a companion case to that of Joe Moffatt (reversed at the present term of this court) 33 S. W. 344, and, for a full statement of the facts attending the homicide, reference is made to that case.

Appellant complains, in his second bill of exceptions, that the state's witness W. A. Boyd was permitted, over his objection, to state that a pair of pants handed to him by a Mexican were the pants of the deceased, Pratt, and had a knife in the pocket of same, which was shut. The ground of appellant's objection to this testimony was that the pants were not sufficiently identified as those belonging to the deceased, Pratt, and a similar objection to the knife. The bill of exception shows that the witness Boyd went to the place where Pratt's body was being prepared for burial, and there saw the naked body, and a Mexican there with the clothes of deceased. Boyd asked for the clothes of deceased, and the Mexican handed them to him; being the bloody shirt produced in evidence, and the pair of bloody pants. The object of this testimony on the part of the state was to show that the deceased had not used his knife during the conflict in which he was killed, and to show the position of wounds on the clothing. The contention of appellant is that the articles were not sufficiently identified as those the deceased had on at the time of the difficulty. In this case the body of the deceased had been taken to the house of Moffatt, the appellant's codefendant, and was, at the time of Boyd's visit, being prepared for burial. The officer came just after he was being undressed for that purpose, and, on request, the Mexican handed him the clothes asked for. There is no suggestion that said evidence was fabricated, or even that there was an opportunity for such fabrication. The circumstances of this case were such as to afford no doubt that the clothes handed the officer were those of deceased, and there was no reversible error in the ruling of the court admitting this testimony.

The appellant complains in the next bill of exceptions that it was error for the court to have permitted the state to introduce evidence that the state's witness Jim Lay had a good reputation, in the community in which he lived, as being a quiet and peaceable man. The theory of the appellant in this case was that Jim Lay had committed the homicide, and that this appellant had nothing to do with same, and evidence was adduced by the appellant for the purpose of establishing this view of the case. The state's theory, on the other hand, was that Jim Lay admitted he did the killing, but was merely a tool of the appellant and his codefendant, and at their instance had taken upon himself the killing of the deceased, Pratt, and that the fact was that Kidwell and Moffatt were the guilty parties. The testimony of the witness as to the general reputation of Lay as being a peaceable and quiet man, we think, was admissible for the purpose of controverting the theory insisted upon by appellant,—the theory of the state being that Lay did not kill Pratt, but that Kidwell and Moffatt did, — as also to show that it was likely true that, in originally assuming the act of the killing of Pratt, he did so, as testified by him, because he was apprehensive that the appellant and his codefendant might carry out their threat to take his life.

In the next bill of exceptions the appellant insists that the court committed an error in failing to require...