Thomas v. State , 33 Tex. Crim. 607 ( 1894 )

HURT, PRESIDING Judge.

Appellant was charged by indictment with tbe murder of J. M. Farley. Tbe trial resulted in a conviction for murder in tbe first degree, with tbe death penalty assessed. Judgment accordingly, from which appellant prosecutes this appeal.

If tbe State’s theory of tbe case be true, appellant is guilty of a deliberate murder for tbe purpose of acquiring possession of and converting to bis own use tbe property of deceased, and perhaps robbery. If that of defendant be true, tbe homicide was in self-defense. There is no murder in tbe second degree in this case. Tbe theory of tbe State is supported by a chain of circumstances leading with almost absolute certainty to tbe conclusion of guilt.

Tbe defendant was a witness in tbe case, and bis defense depends almost entirely upon bis own evidence, which is only very slightly supported by any other.

Defendant’s version of tbe facts attending tbe homicide, condensed, is as follows: “I knew J. M. Farley. He came to my house on tbe 6th of November, 1893, and picked cotton for me. Farley is now dead. I killed him. That night I bought bis 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 tbe bouse. My wife was over at Rachall’s, staying there that night. I bad won nearly all of Farley’s money that I bad given him for his things. On tbe last band be put up all tbe money be bad left, about $8 or $10. When I called be showed bis hand, and be bad six cards and a winning band. I then put my band on the money and told him be could not take tbe money; that be 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 tbe pistol and knocked it down, and be shot me in tbe left leg. Tbe pistol fell on tbe floor. I bad just about gotten up out of my seat when I knocked tbe pistol out of bis band. Just about this time Farley jumped and grabbed bis double-barrel shotgun, which was loaded, and as be was stooping down to pick it up I snatched a piece of cottonwood rail and struck Sam twice on tbe bead, and killed him.” While on tbe stand, in corroboration of bis testimony, be exhibited bis left leg to tbe court and jury, which contained a scar about four inches above tbe knee, and about two and one-half inches apart; tbe bullet appeared to have gone at an angle of about thirty degrees.

On cross-examination, defendant was asked if be bad not exhibited that scar to certain parties before tbe killing. He said no, but that be bad shown them a scar on the right leg. Tbe State requested tbe defendant to submit tbe wounds on both tbe right and left legs to an ex amination by 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 the counsel that he would permit State’s counsel, in tbe 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 the jury in connection with his other testimony; and thereupon defendant, under protest, permitted an inspection and examination by physicians, and the physicians were permitted, oyer objection of defendant, to testify in regard to the same.

A defendant voluntarily assuming the position of a witness is bound to answer all legal questions, whether germain to the examination in chief or not. Had the State the right to ask him to exhibit the wound on his right leg? Had the defendant, in corroboration of his statement, the right to exhibit the wound on his left leg? We think he had. If so, we think the State had the right to make its request. If the State had no right to make such a request, the fact that the defendant refused to comply could not be used against him. Having the right to make such request, there was nothing wrong in defendant’s subjecting his legs to an examination of the physicians.

Bill of exceptions number 3. There was a great deal of proof that defendant killed deceased while he was in bed asleep, and that- it was for the purpose of robbery. The remarks of the district attorney were not improper. These were his conclusions from the facts, which were very well sustained by the circumstances. .

Bill of exceptions number 4. The remarks of the district attorney were proper, and his conclusions were logical.

Bill of exception number 5. The facts proven, complained of in this bill, were of the first importance under the circumstances of this case.

Bill of exceptions number 6. As above stated, there was no murder in the second degree in this case; neither was there manslaughter. It was a cool, deliberate murder, or nothing.

Bill of exceptions number 7. The witness Anderson had not been placed under the rule. Notwithstanding this, the court permitted the State to prove by him that he examined the pants of defendant at Kerens just after his arrest, and that he saw no hole in the leg of his pants caused by a pistol shot. There was no abuse of discretion by the court in regard to this matter.

Bill of exceptions number 8. Defendant had been in Texas but two years. He put his character in evidence. The State, over objections of the defendant, proved by James Bryant, that up to about three years ago, in Alabama, he had known the defendant; that he knew his general reputation as a peaceable and law-abiding citizen in Alabama up to about three years ago, and that his reputation was not good. In this there was no error.

. Bill of exceptions number 9. We can not reverse a judgment because a prosecuting attorney states to the jury that he believes the defendant guilty and ought to be hanged, though this be improper. There is cogent testimony in the record that deceased was asleep when killed, and that the murder was for the purpose of at least obtaining his property.

The evidence supports the verdict. If the guilt of a party can be established by circumstantial evidence, then this appellant is guilty of a cold, deliberate, premeditated murder for the purpose of obtaining the property of deceased, and in the perpetration of robbery.

The defense is a sham — an afterthought — shown to be such by the acts and declarations of the appellant and all the attending circumstances.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.