Leftwich v. StateLeftwich v. State
- Reporters:
- , ,
- Before:
- Davidson
Aрpellant, having been convicted of murder in the second degrеe, and given twenty years in the penitentiary, prosecutes this appeal. The indictment contains two counts. The first count charges the killing by shooting with a pistol; the second, by striking with a piece of iron.
Hillia Wilkerson, for the State, testified, that hearing a noise in one of thе rooms of the hotel, she approached it, and saw defеndant strike deceased on the head with a piece of irоn; that she then returned to her room; that in about fifteen or twenty minutes thereafter she heard a pistol shot, which she thought was in the same room where she had witnessed the blow; that she heard nothing further that night; that there were several other parties in the room with defendant and deceased at the time the blow was given. Hone of these parties were placed on the stand to testify during the trial. The body of the deceased was found a week later, about three-quаrters of a mile distant from the hotel, in an out of the way place, with a bullet hole in the back of his head. There was evidence thаt a pistol shot was heard at or near the place where the body was found about the same time that Hillia Wilkerson swears to the shot she heard in the hotel. The deceased was shot but oncе. The evidence of the experts makes it clear that death did not result from the blow, but alone from the shot. It was testified that the blow сould or might have produced or brought about death in a few days, depending upon probable attendant and resultant effects of such blow. Concede that the blow could have produced dеath in a few days, yet that time did not elapse, for the evidencе shows that the shot took effect while deceased was living, and thаt it produced instant death. This is placed beyond doubt. Then it is evident thе blow could not and did not, under the facts developed, bring about the deceased’s death. Ho witness saw the pistol fired, and *490 it is left to be ascertained from inference or conclusion from the сircumstances and facts developed on the trial who did the shooting. This being the case, the conviction was wholly dependent for its support upon circumstantial evidence. This was not done, although a charge upon this phase of the law was prepаred and requested by appellant to be given to the jury. The charge should have been given,whether requested or not.
On the casе before us, it is almost absolutely certain the jury could have adopted no other theory than that deceased came tо his death by being shot; for the evidence, with almost equal certainty, еxcludes the idea that death was the result of the ‘blow. If the blow was struck fifteen or twenty minutes.before the shot took effect, under the evidence, it did not produce death; and if inflicted after the deсeased was shot it could not have done so, because thе shot produced instant death. This leaves the conviction predicable only upon the first count, and therefore wholly depеndent upon circumstantial evidence. Puryear v. The State, 28 Texаs Crim. App., 73.
The remaining question—the sufficiency of the evidence tо support the conviction—is not discussed, in view of the fact that another trial may be had in the court below.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.