Pilot v. State

• Decision Date: 12 January 1898
• Citation: 43 S.W. 1024
• Parties: PILOT v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 1024

PILOT v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1898.

Appeal from district court, Shelby county; Tom C. Davis, Judge.

Henry Pilot was convicted of burglary, and appeals. Affirmed.

D. M. Short & Sons, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary; hence this appeal.

Appellant complains of the action of the court in overruling his motion for a continuance on account of the absence of two witnesses, Grant Pilot and one Amey, both of whom, he says, had been subpoenaed as witnesses for him in the case. By the witness Amey he proposed to prove that, a few days before the alleged burglary, said Amey who was a gunsmith, had repaired the gun of appellant. It was insisted that this testimony was material in rebuttal of the state's proof that, in connection with the two parties (defendant being one of them) who were seen by the two state's witnesses in the act of burglarizing the house, defendant had a shotgun, and snapped it at the state's witnesses. Now, in response to this position, it is only necessary to state that the proof offered by the state did not show that it was the shotgun of the defendant which was used. Indeed, when we recur to the testimony on the part of the state, the witness states he was not certain whether it was a shotgun or not. So far as the state's case is concerned, if appellant had a shotgun it is not claimed that it was his own shotgun, and we fail to see how the bare circumstance that he had his rifle repaired a few days before by the gunsmith would have had any material bearing on the case. As to the witness Grant Pilot, the application states, in general terms, that Grant, the son of appellant, was at home on the night the burglary was committed. The circumstances attending this alibi testimony are not stated. The burglary occurred about 12 o'clock at night, at a little town about four miles from the defendant's house. How many rooms were in said house, whether Grant slept in the same room with appellant, or whether it is pretended that he was awake during the night, and knew that appellant was at home, is not stated. This application is not such a definite statement of facts as would authorize us to entertain the motion in this regard. The motion for a continuance, as well as the motion for a new trial, predicated on the action of the court in overruling the same, was properly overruled.

It is claimed by appellant that the court erred in permitting the state to introduce C. L. Johnson, after the defendant had closed his testimony, in rebuttal; the insistence being that the testimony of the said Johnson was original testimony, and not in rebuttal of anything that defendant proved, and should have been introduced originally by the state. It is true the testimony of Johnson was original testimony, and might very properly have been introduced by the state originally, but it was also directly in rebuttal of the defendant's theory of an alibi. His testimony tended to show that he was at an another and different place at the time of the burglary. This was testimony directly in rebuttal of the fact that he was not at the place of the burglary, and, even if it had not been, under the circumstance of this case, its admission would not have been reversible error.

Appellant's third assignment of error is based on the action of the court in allowing Dr. H. M. Reeves to state that he was a physician, etc., and that on the next morning after the killing of Handy Pilot, the brother of the defendant, he saw his dead body, and found a wound on the left side of his leg, just below the knee, the result of a gun shot. The bones had been fractured in three places, and the muscles and artery had been severed. This leg was covered by heavy drawers and pants, and the sock was drawn up over the drawers. The testimony, in connection with this, showed that said Handy Pilot was shot in the burglarized house about 12 o'clock, and that his dead body was found the next morning about 18 feet in the rear of the store, in a gully. Dr. Reeves was permitted...