May v. State
| Decision Date | 03 March 1888 |
| Citation | 7 S.W. 588 |
| Parties | MAY v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Harris county; GUSTAVE COOK, Judge.
Indictment for murder by the state against Lew May. Defendant was found guilty, and appeals.
The death penalty was assessed against the accused in this case for the murder of Clarence Phillips. There is no material variance between the testimony of the various witnesses for the state. They concur in stating that defendant, deceased, and one Wentzell, were attendants at a party given at the house of one Norris, on the night of July 4, 1887; that a disturbance, which arose about 3 o'clock on the morning of the 5th, induced Wentzell, the musician, to suspend playing; that he resumed his playing after some words with defendant, and played until the party broke up at daylight; that deceased left Norris' house followed by Wentzell, with the violin, (which belonged to deceased,) who stopped at the gate; that defendant there took the violin away from Wentzell, covered him with his pistol, and said that he was going to cut the violin to pieces; that defendant's wife then approached the gate, when defendant repeated to her that he was going to destroy the violin; that Mrs. Phillips passed on, and her husband, deceased, soon returned to the gate; that defendant repeated his threat to deceased, who claimed the violin, and said that he would have it; that defendant covered deceased with his pistol, and said that he would kill deceased before he should have it, and that, when deceased said that defendant was a d___d rascal or scoundrel, defendant fired, and shot deceased, who fell to the ground; that deceased was removed to Houston on the same day, and several days afterwards died in the hospital or infirmary. It was proved for the state that deceased was unarmed, was standing still, and was making no hostile or other demonstrations when he was shot. One of the witnesses for the defense testified that, during the night of the 4th, deceased showed him a pistol, and told him that he was going to kill defendant before morning, which fact he communicated to defendant before the shooting. Another testified that, during the dancing, defendant told her that deceased was drinking, and had been trying, up to that time, to get him out of the house, to provoke a difficulty, but that he had not gone out, because he wished to avoid trouble. Another testified that deceased was advancing and defendant retreating when the fatal shot was fired.
Asst. Atty. Gen. Davidson, for the State.
1. It was not error to refuse to grant defendant's application for continuance. P. S. Humble, one of the witnesses for whose testimony the continuance was asked, testified on the trial in behalf of the defendant. W. McFadden, another one of said witnesses, was present before the testimony on the trial was concluded, and defendant declined to place him on the witness stand....
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