Riley v. State ( 1885 )

White, Presiding Judge.

After a wordy altercation in the saloon, appellant and deceased, Ball, got together outside on the sidewalk, and fought. When separated appellant got upon his horse and rode off. Ball went back into the saloon and, after a short while, was prevailed upon by the saloon keeper to go and get his wagon and go home. He went out of a back door to get his wagon. It was a dark night. It does not appear that any one saw him, or what took place when he was out at this time. He returned in a short, time through a back door into the back room of the saloon, and called to the saloon keeper for a light, saying: “Bring a light here; that snoozer has cut me.” On going to him with a light, the bar keeper found that his abdomen was cut open and his entrails were protruding.

[Opinion delivered December 16, 1885.]

If appellant had cut him with a knife during the fight on the sidewalk, then neither deceased nor any one else appears to have known •it. No one saw appellant with a knife at that time and in that rencounter. If appellant met deceased and cut him when deceased went for the wagon, then no one was present and saw the cutting. Deceased himself did not say that defendant cut him. That defendant cut him is solely an inference derivable and deducible from the facts and circumstances transpiring before he was found to be cut. It was a case clearly of circumstantial evidence, and the court should have charged the law applicable to such, a case. A failure to do so is fundamental error. (Vaughn v. The State, 17 Texas Ct. App., 562, and authorities collated; Schindler v. The State, 17 Texas Ct. App., 408; Black v. The State, 18 Texas Ct. App., 124; Wright v. The State, 18 Texas Ct. App., 358.)

Reversed and remanded.