Roach v. State

<p>Appeal from the District Court of Hunt. Tried below before the Hon. J. A. B. Putman.</p> <p>The conviction in this case was for an assault with intent to murder one H. 0. Poindexter, in Hunt county, Texas, on the fifteenth day of January, 1885. The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>H. 0. Poindexter was the first witness for the State. He testified that on the fifteenth day of January, 1885, he was living at the house of Andrew Hefner, in whose employ he had been since late in the year 1884. Hefner lived on the old Slack place, about five miles north of Greenville, in Hunt county. From the sitting room in which Hefner’s family were sitting, the witness, about nine o’clock on the night of February 15, 1885, started to bring a bucket of water. When he reached, and partially opened, the side door of the room, which was directly opposite the fire place, he saw a man standing on the edge of the gallery in front of the door. Witness did not recognize the man, but immediately closed the door, ran back into the house and got his pistol. Returning, the witness threw the door wide open, and by means of the light thrown from the sitting room, saw and recognized the defendant. ' Defendant turned and fled toward the gate. Witness followed into the yard. When the defendant reached a point fifteen or twenty steps from the gallery, he turned and opened fire on the witness. The witness then fired on the defendant, and advanced on him until both of them got some distance beyond the gate. When the defendant reached a point a short distance beyond the lot, he was joined by one or two other parties, who engaged in the fight. The defendant and his companions fired several shots. Witness fired four shots from his own pistol, retired, got Hefner’s pistol, returned and fired two more shots- Hefner came out about the time the last shot was fired by witness, and called to the parties that if they would come from cover they should have fair play. The parties then left. They had their horses hitched near the house. Eighteen empty cartridges were found on the field of battle next morning. One of the balls fired by the parties passed through witness’s coat.</p> <p>Cross-examined, the witness testified that he was shot by the defendant in a previous fight with him in September, 1884. Though the witness, when he first opened the door and saw the man on the gallery, failed to recognize the defendant, he felt confident that the man was the defendant, and that he had come to Hefner’s house to kill witness. Witness and defendant were not on good terms. Defendant made no demonstration as if to shoot, when witness first went to the door. He made no effort to shoot when witness went outside with his pistol, but fled towards the gate. Witness did not see the pistol in the defendant’s hand. When defendant turned and fired at witness, witness saw the blaze from the pistol. Witness was then stooping, endeavoring to get a sight of defendant. He had not then fired, nor did he fire until the defendant fired his first shot. Witness could not say exactly how many shots were fired during the engagement, but on the next morning eighteen empty cartridges were found on the ground of the fight.</p> <p>A. C. Hefner testified, for the State, that he retired early on the night of February 15, 1885, leaving Poindexter and the members of his, witness’s, family, sitting about the fire. About nine o’clock on that night, Poindexter started with a bucket to get some water. From the door of the sitting room, Poindexter ran back into the house, calling for his pistol. He secured his pistol and went out of the house, and within sufficient time for him to reach a point fifteen or twenty steps from the house the shooting began. Witness was unable to say who fired the first shot, or how many shots, in all, were fired. When he got out of the house, the witness saw the flashes of the pistols, which indicated that firing was done from two or three different directions. Poindexter was then shooting his pistol. The night was cold and dark, and witness was not able to recognize any of the parties shooting at Poindexter. Witness called to tifie parties that, if they would show themselves and fight fairly, they s'hould have fair play. The parties opposed to Poindexter then mounted their horses and rode of. Eighteen empty cartridge shells were found the next morning on the ground.</p> <p>Cross-examined, the witness said that he had lived several years in the neighborhood, and knew the defendant. He had no recollection of seeing the defendant in the neighborhood in January, 1885, or at any other time since the fall of 1884. Witness heard of the difficulty between defendant and Poindexter in September, 1884, since when he had never seen the defendant. Witness did not know that the defendant was one of the parties who were at his house on the night of the shooting.</p> <p>Charles Matthews testified, for the State, in substance, that he lived within a few hundred yards of Hefner’s house in January, 1885. On the night of the fifteenth day of that month, witness heard some parties,—two, he thought,—pass his house horseback, going towards Hefner’s house. He did not see the parties, and, of course, had no idea who they were. A few minutes later, witness heard some fifteen or twenty shots fired at or near Hefner!s house. Witness knew Poindexter, but did not know the defendant. If witness had ever seen defendant in that neighborhood, he did not remember it. The State closed.</p> <p>W. E. Havens testified, for the defense, that he knew defendant during and prior to the year 1884. He heard of the difficulty between defendant and Poindexter in September, 1884, when the former shot the latter. Witness saw nothing of the defendant from September, 1884, until the summer of 1885, when he returned and surrendered. If defendant had been in Hunt county during the time between September, 1884, and the summer of 1885, witness thought he would have seen him. Defense closed.</p> <p>M. L. Hale testified, for the State, in rebuttal, that he hunted defendant with a capias several months during 1885, but was unable to find him.</p> <p>J. J. Hubbard testified for the State, in rebuttal, that it was his impression that he saw the defendant at Mrs. Dean’s house, in Hunt county, in January, 1885.</p> <p>The defendant’s motion for new trial was supported by the affidavits of C. C. Christian, J. H. Maynard, and J. J. Terrett, to the effect that, to the knowledge of the affiants, the defendant was at and about the neighborhood of Oakes’s ferry, in Lamar county, Texas, during and throughout the month of January, 1885. The motion otherwise raised the question discussed in the opinion.</p>