Thomas v. State

• Decision Date: 28 November 1894
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 534

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1894.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Lee Thomas was convicted of murder, and appeals. Affirmed.

Ballew & Ballew, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J.

Appellant was charged by indictment with the murder of J. M. Farley. Trial resulted in a conviction for murder in the first degree, with the death penalty assessed. Judgment accordingly, from which appellant prosecutes this appeal. If the state's theory of the case be true, appellant is guilty of a deliberate murder, for the purpose of acquiring possession of and converting to his own use the property of deceased, and perhaps robbery. If that of defendant be true, the homicide was in self-defense There is no murder in the second degree in this case. The theory of the state is supported by a chain of circumstances leading with almost absolute certainty to the conclusion of guilt. The defendant was a witness in the case, and his defense depends almost entirely upon his own evidence, which is only very slightly supported by any other. Defendant's version of the facts attending the homicide, condensed, are as follows: "I knew J. M. Farley. He came to my house on the 6th of November, 1893, and picked cotton for me. Farley is now dead. I killed him. That night I bought his horse and buggy and gun and saddle for $55, and I paid him. We then got into a game of cards, — poker. He and I were alone in the house. My wife was over at Rachel's. staying there that night. I had won nearly all of Farley's money that I had give him for his things. On the last hand he put up all the money he had left, — about $8 or $10. When I called, he showed his hand, and he had six cards and a winning hand. I then put my hand on the money, and told him he could not take the money; that he was cheating, and had too many cards. Farley then jerked out a pistol and threw it down on me, in my face. I grabbed at the pistol, and knocked it down, and he shot me in the left leg. The pistol fell on the floor. I had just about gotten up out of my seat when I knocked the pistol out of his hand. Just about this time, Farley jumped and grabbed his double-barrel shotgun, which was loaded, and as he was stooping down, to pick it up, I snatched a piece of cottonwood rail and struck him twice on the head and killed him. * * *" While on the stand, in corroboration of his testimony, he exhibited his left leg to the court and jury, which contained a scar about four inches above the knee and about two and a half inches apart. The bullet appeared to have gone at an angle of about 30 degrees. On cross-examination, defendant was asked if he had not exhibited that scar to certain parties before the killing. He said, "No"; but that he had shown them a scar on the right leg. The state requested the defendant to submit the wounds on both the right and left legs to an examination of a physician. Counsel for defendant objected, and the jury were retired. After hearing the objections of counsel for defendant, the court sustained the same, but stated to counsel that he would permit state's counsel, in the presence of the jury, to ask defendant to exhibit his leg, and, if he refused to do so, that his refusal would be permitted to go to the jury in connection with his other testimony, — whereupon defendant,...