Thomas v. State

• Decision Date: 29 April 1903
• Citation: 74 S.W. 36
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 36

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1903.

Appeal from District Court, Falls County; Sam R. Scott, Judge.

Aaron Thomas was convicted of crime and appeals. Reversed.

Rice & Bartlett, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 10 years; hence this appeal.

Appellant objected to the state proving by the witness Jim Bledsoe that before the shooting by appellant in which deceased was killed he saw Doll Baty take deceased's pistol away from him, and hide it behind a stump in some grass; that the homicide occurred about 100 yards from where the pistol was hid. Said testimony was objected to because appellant was absent at the time said pistol was hid, and was not apprised of such fact. The court explains the admission of this testimony by stating that defendant proved by himself and other witnesses deceased had a pistol at the time he was killed by defendant, and fired said pistol at him immediately before defendant fired the fatal shot. We believe this testimony was competent to rebut the state's evidence. It could have been proven, in order to rebut this evidence, that, after the homicide, in the absence of appellant, the body of deceased was examined, and no pistol was found on his person, or near him; or it could have been shown that he had but one pistol, and that he left it at home. So we take it that any fact or circumstance showing or tending to show deceased did not have a pistol at the time was competent testimony to meet the case made by appellant to the effect that deceased did have a pistol, and used it on that occasion. What we have said in regard to this bill disposes of appellant's bill of exceptions No. 9, with reference to the testimony of Julius Dubose as to the finding of deceased's pistol after the difficulty.

Nor do we think the court committed any error in permitting the witness Minerva Grigsby, the mother of deceased, to testify that the certain waist and skirt which she exhibited to the jury was the one worn by her on the night that deceased was shot and killed by defendant; and that said waist and skirt had blood on them, and was caused by the wound inflicted by defendant on deceased; that she was holding deceased at the time he was shot, and this caused the blood on her garments. As shown by the court, this was in rebuttal of appellant's testimony that no one was holding deceased at the time he shot, and that Minerva Grigsby was not present when the shot was fired. The blood on her garments was merely an incident corroborative of her testimony. We do not believe the authorities with reference to the admission of the clothing worn by deceased at the time of the homicide have anything to do with this question. The evidence was not offered to show any physical marks of bullets or knife on the clothing, and thus illustrate how the killing was done, but merely as an incident in connection with the testimony of the witness, and corroborative of her statement.

Appellant objected to the testimony of Hayes, who was allowed by the court to state that the wound in deceased's breast was a round hole, and about the size of a guinea egg; and that, in his opinion, from the examination of the size and nature of the wound in the body of deceased, the gun with which same was shot was fired within a few feet of the deceased; and that he based his opinion thereon because he had frequently seen beeves shot with a shotgun, and knew the character of wound a shotgun would make in a beef steer when fired at close range. We do not believe it required an expert witness to state this, but was the statement of a fact which occurs in the ordinary observation of men. At any rate, appellant was not prejudiced thereby, inasmuch as appellant himself testified that he shot deceased with a shotgun at close range, being only a few feet away, and the judge's explanation shows this.

The court gave the jury the following charge: "If you believe from the evidence beyond a reasonable doubt that def...