Leftwich v. State

• Decision Date: 18 May 1895
• Parties: LEFTWICH v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 385

LEFTWICH v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1895.

Appeal from district court, Montague county; D. E. Barrett, Judge.

Bob Leftwich was convicted of murder in the second degree, and appeals. Reversed.

J. M. Chambers and Templeton & Patton, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant, having been convicted of murder in the second degree, and given 20 years in the penitentiary, prosecutes this appeal. The indictment contains two counts. The first count charges the killing by shooting with a pistol; the second, by striking with a piece of iron.

Hillie Wilkerson, for the state, testified that, hearing a noise in one of the rooms of the hotel, she approached it, and saw defendant strike deceased on the head with a piece of iron; that she then returned to her room; that in about 15 or 20 minutes thereafter she heard a pistol shot, which she thought was in the same room where she had witnessed the blow; that she heard nothing further that night; that there were several other parties in the room with defendant and deceased at the time the blow was given. None of these parties were placed on the stand to testify during the trial. The body of deceased was found a week later, about three-quarters of a mile distant from the hotel, in an out of the way place, with a bullet hole in the back of his head. There was evidence that a pistol shot was heard at or near the place where the body was found about the same time that Hillie Wilkerson swears to the shot she heard in the hotel. The deceased was shot but once. The evidence of the experts makes it clear that death did not result from the blow, but alone from the shot. It was testified that the blow could or might have produced or brought death in a few days, depending upon probable attendant and resultant effects of such blow. Concede that the blow could have produced death in a few days, yet that time did not elapse, for the evidence shows that the shot took effect while deceased was living, and that it produced instant death. This is placed beyond doubt. Then it is evident the blow could not and did not, under the facts developed, bring about deceased's death. No witness saw the pistol fired, and it is left to be ascertained from inference or conclusion from the circumstances and facts developed on the trial who did the shooting. This being the case, the conviction was wholly dependent for its support upon circumstantial evidence. This was...