Purdy v. State

• Decision Date: 26 October 1910
• Citation: 131 S.W. 558
• Court: Texas Court of Criminal Appeals
• Parties: PURDY v. STATE.

131 S.W. 558

PURDY v. STATE.

Court of Criminal Appeals of Texas.

October 26, 1910.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

John Purdy was convicted of murder in the first degree, and he appeals. Affirmed.

Love & Williams and Jno. W. Hill, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This appeal is prosecuted from a conviction had in the district court of Uvalde county on the 11th day of April of the present year, where the appellant was found guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

The indictment upon which the conviction rested was originally returned in the district court of Kerr county on the 6th of January, 1910. Thereafter on the 22d day of January, 1910, the case was, on change of venue, transferred to Uvalde county, where the trial was had. The appeal is prosecuted by counsel appointed by the court to conduct appellant's defense, and the questions raised in the record have been presented in written brief with great force and clearness. It is, with commendable candor, conceded by the learned counsel that, except in the respects urged in the motion, the trial by the court and jury was alike fair and impartial, and that, unless the errors so assigned are grounds for reversal, appellant is without complaint.

The nature of the questions is such as to require a somewhat detailed statement of the facts leading up to the killing. It is shown by the testimony of Henry Stout: That he was constable and deputy sheriff in Kerr county. That on or about the 4th day of September, 1909, he was sent for to go into the negro part of the town of Kerrville, where he was informed appellant was making trouble with one Polly Coleman. That his information came to him through one Hugh Wilson, who told him, to use the precise language of the witness, that "he (appellant) was raising hell with Polly." That, when he got in sight of the house where he could see, Polly motioned for him. That she and appellant were scuffling over something between them. That he went to where these persons were, on horseback, and when he was in about 80 yards of the house appellant jerked a pistol away from Polly and shot at him. That he at once pulled up his horse, and reached for his pistol, when appellant shot again. That after firing the first shot appellant ran towards him about 20 steps, and that when his horse stopped appellant stooped down and shot again. It seems that both parties fired at each other several times. That after the shooting appellant ran off through a pasture, and was going north the last time he saw him. That he then went and telephoned to Mr. Moore, the sheriff, to come out and assist him, advising him what occurred, and then went back to hunt appellant up. That as he went along he met Polly Coleman coming down the road, of whom he inquired where appellant was. That this was about 15 minutes after the transaction at the house. That about a mile from the courthouse he saw appellant get up near the cemetery, and at this time he was about 200 yards from him, and that at the time it looked like appellant had started towards him. That at this time he saw Mr. Moore, the sheriff, who was a little further down, and who could not see appellant from where he was. That he then started across a field, when for the first time the deceased, Mr. M. F. Butler, came up on his left.

In order to show the occasion of Mr. Butler's being at this point, it becomes necessary to recur to the testimony of Mr. Moore, the sheriff. He says that he had just got across the creek over a wire fence into a lane, and that at this time Mr. Butler came up behind him on a horse on the outside, and asked him what was the matter; that he then told him they were after this negro, meaning appellant, and pointed him out crossing the field, and at the time appellant was running; that he then told Mr. Butler to tear the fence down and come across; that Mr. Butler tore it down; that he (Moore) tore the other fence down, kicked the staples out, got the wire down, and Butler passed over, being at the time on horseback; that Mr. Stout at this time was about a hundred yards above and was then joined by Butler, and he saw them both going across the field; that in the meantime he was watching the negro, who was still running towards the timber. Matters having progressed this far, it seems that for the first time Mr. Stout saw Butler, and that his attention was attracted to him by his whipping his horse, when he looked around and saw him. He says, further: That he and Butler got pretty close together. That he was watching the fence to get a place to get through, when deceased told him to come over there and they would take the fence down in the corner. It also appears that there was a Mr. Covert plowing in this field, who called to him, and that he was at the time knocking the fence down with a wrench or something, and that while crossing this field appellant and Covert, as the witness says, got together, and that he (Stout) motioned to Covert to stop appellant —holloed to him across the field. That he does not know whether he understood it or not, but that he ran out in front of appellant. That, when he and Butler got to where Covert had torn the fence down, they ran across the field to the next fence side by side, and jumped off their horses and commenced tearing the fence down, in which they finally succeeded. That Mr. Butler went over and ran up the mountain where they had last seen appellant. That when he last saw appellant he was running a little to their right along the mountain side, and that Mr. Butler ran right up to where he last saw appellant. That they did not go up the mountain together, but came together after going up on it, when he said to Mr. Butler that appellant had not come that way, and remarked, "I says: `We will go back down the hill. I will go down here, and you go up there.' Mr. Moore was coming across the field. `We will catch him down there.' I told Butler to be careful. I says, `He might shoot you.' He says, `All right.' That was the last time I spoke to Butler." He further states: That, after Mr. Butler left him, he went north about 250 yards to some more hills and watched around the hill, looking about, when he heard two shots fired below, one almost immediately after the other. That he loped down to where this was, and the first he saw was Mr. Butler's horse standing, and when he got a little closer he saw Butler sitting up holding his side. That he did not see appellant for a little while, but that just as he got there Mr. Moore came up the hill, when he saw him pick up appellant's six-shooter, and at this time saw appellant. Mr. Butler lived about an hour but as far as the record discloses made no statement. That the whole transaction from the time of his first visit to the house where the exchange of shots took place to the time when Butler was fatally shot included possibly 30 minutes. It also appears from Mr. Stout's testimony that when he first got downtown he secured the aid of one Gregoria Ayala.

Continuing the narrative of the sheriff, Mr. Moore, he says: That, after Mr. Stout and deceased left him, he went across the field to where Mr. Covert was plowing and got a horse from him, and at this time appellant stopped on the hillside in the brush; that is, he saw him when he passed over the hilltop. That Stout and Butler got almost to where defendant was, but they were tearing down the fence at the time he hid. That after they crossed the fence they went up the hill and passed right close to where appellant was when he went out of view. That soon after this appellant undertook to come around the hillside, and that just at this time Mr. Butler came back on top of the hill, horseback, and as he came in view of appellant, stopped, got off his horse, walked a few steps, and that he then saw the smoke come from the brush where appellant had stopped, and just immediately afterwards Mr. Butler fired. That he then went on to where Butler was, who called to him that he was shot. It was also discovered that when found appellant was badly shot, and his leg broken near the middle of the thigh. It is testified to by Polly Coleman that, just a short time before the killing, she had heard Ella Jackson tell appellant that Mr. Butler was an officer. This, it may be stated, was the only testimony touching this question at all. She also testifies as follows: "Before Mr. Stout came out there, Purdy told me he was not going to...