Testard v. State

• Decision Date: 27 October 1888
• Citation: 9 S.W. 888
• Parties: TESTARD v. STATE.
• Court: Texas Court of Appeals

9 S.W. 888

TESTARD v. STATE.

Court of Appeals of Texas.

October 27, 1888.

Appeal from district court, Gonzales county; GEORGE W. McCORMICK, Judge.

Indictment against William Testard for the murder of Lewis Hunter. The fatal shot was fired in front of a livery stable in the town of Gonzales, about 10 o'clock at night, the defendant and deceased being but a few feet distant from each other. The only witness who saw the shooting, except the deceased and defendant, testified that while he was sitting at the front door of a saloon, a short distance from the stable, he saw the defendant go from that saloon to the stable, in front of which the deceased was lying on a cot. Defendant sat down in a chair near the cot, and in a few minutes the deceased got up from the cot, and began to move away from the defendant, when the defendant raised his hand and fired. The deceased made an exclamation, and fled, the defendant firing a second shot at him. Deceased ran to the corner of a fence on a neighboring block, and fell. Defendant crossed the street, and climbed into the yard of his father, over the back fence. He was soon afterwards arrested in his father's house. At that time, according to state witnesses, he was under the influence of liquor, but was not drunk, and knew what he was doing. According to members of his family, he was very drunk. It was further shown by the state that about 30 minutes before the shooting, three negro girls passed from the stable up town, and that defendant and another person started to follow them, when the girls returned to the stable, and requested deceased to escort them home. The deceased, who was a negro, acceded to their request, remarking that "it was strange colored girls were not safe from white men in walking the streets," and that he would "protect them." The man who, with the defendant, followed the girls, testified that the defendant asked him: "Did you hear him [deceased] speak of me as a pale-faced son of a b____h?" And that he truthfully answered in the negative. The dying declarations of the deceased were to the effect that, after he laid down on his cot, the defendant came to the cot and sat down in a chair near it. He then said to deceased: "I ought to kill you." That he (deceased) protested that he was not armed, and that he would go and inform Mr. Morris, the proprietor of the stable. That he then arose to his feet, when the defendant fired and shot him. That he then fled, calling for Morris, when the defendant fired again, and missed him. Asked why the defendant shot him, the deceased said, "For nothing;" and, "About my cousin." One of the witnesses thought the cousin referred to was one of the girls mentioned. All of the witnesses concurred in the statement that no weapon was found on the body of the deceased, or about the cot or stable. Two or three witnesses for the defense testified that, on occasions prior to the day of the shooting, they saw a pistol in the possession of the deceased at the stable, which he claimed as his property. One of the said witnesses stated that he once saw that pistol under the pillow on deceased's cot.

Defendant moved for a continuance, on the ground of the absence of one Hensley, who he alleged would testify that, at the time the shot was fired, deceased arose from the cot, and made a motion with his hand as if to draw a pistol. His application was refused, and in the progress of the trial the state was allowed to prove that diligent search had been made for Hensley, but that he could not be found, nor could it be ascertained that any one had ever seen or heard of any such person in the county. It did not appear that any of the jury were present when the continuance was applied for, or that they knew that Hensley was desired as a witness. The dying declarations of deceased were proved after it was shown that they were made voluntarily, not in answer to questions calculated to elicit any particular statements, and that at the time of making them the deceased was sane, and conscious of approaching dissolution. While in the...