Powers v. State

<p>Appeal from the District Court of Taylor. Tried below before Charles I. Evans, Esq., special judge.</p> <p>The indictment in this case was presented at the October term, 1886, of the district court of Taylor county, and charged that the appellant, Til C. Powers, on September 20, 1886, o'f his express malice aforethought, did assault, kill and murder A. J. Eubank, alias Jack Eubank, by cutting him with a knife. The trial commenced on October 27, 1886, and resulted in a conviction for murder in the first degree, with the penalty of a life term in the penitentiary.</p> <p>The first witness for the State was J. A. Eubank, who testified that he was the father of A. J. Eubank, usually called Jack Eubank, now deceased. Deceased was about twenty-four years old, a little over five feet high, and weighed about one hundred and forty pounds. Witness was absent when the deceased died, but saw his body on the twenty-first of September, 1886, which was the next day after his death.</p> <p>Doctor Richardson testified, for the State, that he lived at Merkel, in Taylor county, Texas. He reached the deceased, at Coggin’s saloon, in Merkel, within a quarter of an hour after he was cut. Deceased was wounded in the neck, and his right wrist was cut. The neck wound was on the left side of the throat. It was an incised wound, about an inch and a half deep. It entered a little behind and under the left ear, and extended downward to the Adam’s apple. Immediately behind the ear there was what seemed to be a scratch on the skull. The wound on the neck severed the jugular vein and both branches of the carotid artery. It was about three and a half inches in length. The wound on the wrist seemed pretty deep, and some of the arteries seemed to have been cut. This wound was calculated to disable the arm, and to prevent any use of it. Deceased lived something over an hour after the witness reached him. The neck wound was necessarily fatal. The difficulty occurred about September 20, 1886, in Merkel, Taylor county, Texas, and the deceased died the same day in said county. Witness was about three quarters of a mile from the place of the difficulty when he first heard of it. When he reached there he found Doctor Strangle, who had already tied the artery. Deceased’s life was prolonged by the injection of whisky or brandy into his arm. With the jugular vein and both branches of the carotid artery severed, a person would ordinarily die in from nine to thirty minutes. Fo other wounds or cuts were found on the body or clothing of the deceased. Witness had been a practising physician for seven years, and was practising at Merkel when Jack Eubank was killed.</p> <p>Doctor Shangle, for the State, testified that on September 20, 1886, he was called to attend the deceased and reached him a few minutes after he was cut. Deceased was lying in Coggin’s saloon, with his throat cut. Witness described the deceased’s wounds substantially as Doctor Richardson had done, except that he stated that one branch of the carotid artery was only partially severed. After the wound on the wrist was inflicted, the deceased could not have lifted any thing with it. That wound was on the front of the wrist and extended entirely across the arm. When witness reached the deceased the blood from the artery was spurting about three feet; that from the vein was a regular flow. Deceased died from the wound in the neck the same day it was inflicted.</p> <p>A. W. Thornton, for the State, testified that he was in Merkel on September 20, 1886, on which day Jack Eubank was killed. About four o’clock in the afternoon, which was about two hours before the killing, the deceased and witness were sitting in the doorway of Coggin & Yicker’s saloon, in Merkel. Witness was sitting on a chair, and deceased at the door with his left foot on the door sill, and his right leg thrown across his left knee. De- , ceased and witness had been in conversation about half an hour when the defendant rode up to the saloon, dismounted from his horse, passed into the saloon through the door in which the deceased and witness were sitting, and went to the bar and took a drink. He then came to the door and “ sorter” leaned against its west side, and placed his foot upon the left foot of the deceased, who was still sitting in the attitude already described. Deceased looked up at the defendant and kindly remarked: “That is my foot you are on there.” Defendant made no reply, but remained with his foot on that of the deceased. Deceased, when he made said remark, spoke plainly and loud enough for the defendant to hear him. The remark could have been heard twenty or thirty feet distant. About half a minute after deceased made the remark he pushed the defendant’s foot off of his own with his right foot. No words passed. Defendant did not speak to deceased after dismounting from his horse, but left without saying a word after his foot was pushed off by the deceased. At this point the prosecuting attorney asked the witness to “ state what was the manner of the defendant at the time he placed his foot on the foot of deceased; was his manner insulting, or was it playful and done in a jocular manner?” The witness answered that, “from the defendant not moving his foot from Eubank’s foot when Eubank asked him to do so, I regarded it as an insult.” (The defense reserved exceptions to the allowance of this question and the answer, and their competency constitute the gravamen of the ruling formulated in the fifth head note of this report.)</p> <p>On cross examination the witness said he knew nothing about the relation existing between the defendant and the deceased anterior to the day of the killing. Defendant did not seem angry when he walked into the saloon, nor, so far as witness noticed, did he exhibit any ill will to any one at that time. When he put his foot on that of the deceased he exhibited no ill feeling except the placing of his foot on the deceased’s and refusing to remove it when requested. Neither defendant nor deceased appeared to be angry, though the witness did not scrutinize the face of either of them at the time. Deceased seemed to take no offense at what the defendant did. Several persons were at the bar at the time. Dock Grounds was sitting on or near the bar, and Vicker was behind it.</p> <p>J. G. Jernigan, for the State, testified that he was in Merkel the day Jack Eubank was killed. About half an hour before that event the witness, the deceased, George Clayton, W. A. Grounds and the defendant, were all standing at the bar in Cog-gin & Ticker’s saloon. Witness and deceased were standing together at the end of the bar, and deceased was drinking lemonade, when the defendant, with a large, three-bladed pocket knife in his hand, came up behind the deceased, reached over his shoulder and drew the knife, which was closed, across his throat, saying as he did so, “you d—d old fool.” This occurred about half an hour before the killing.</p> <p>Cross-examined, the witness said he was not at the saloon when the killing occurred, but was then at Doctor Richardson’s, and heard of the difficulty soon after it took place. Neither the defendant nor the deceased seemed angry when the knife was drawn across the latter’s throat. Defendant’s manner at the time seemed playful. Deceased did not seem to take any offense at defendant’s action. He said nothing and witness apprehended no trouble between them. The only thing said or done was the action of defendant with the knife and his remark at the time. Witness is positive that it was a knife, and not a comb, that was drawn by defendant across the throat of the deceased. Witness had known the deceased for several years, and regarded him as a man who would resent an insult, but never knew him to be engaged in any difficulty. Witness saw defendant and deceased together several times on the day of the killing, and noticed nothing out of the way between them. They seemed to be friendly. It is a common thing for cowboys to call each other liars.</p> <p>George Clayton, for the State, testified that he was at Coggin & Ticker’s saloon when Jack Eubank was killed. Three or four minutes before the killing the deceased and Dock Grounds were sitting in front of the saloon, talking, and, as witness understood it, they were disputing about an order which the deceased claimed had been given by Grounds for a jack and a span of mules. The defendant was squatting near the southeast corner of the saloon. The order, as witness understood from the conversation, was given by Grounds on his book keeper, J. Y. Russell, for the benefit of Jim Cooksey, to whom Grounds was indebted, and the mules and jack were to be delivered to the deceased for Cooksey. It seemed that Grounds, who was drinking, either denied giving the order, or that the order had not been delivered to Russell. Deceased said, “Why, Dock, you won’t deny giving the order, will you? Uncle Jack Coggin there saw you give it to me, and he went to your ranch with me, and saw me give it to D. Y. Russell, and saw me get the stock for it. And if D. Y. Russell has’nt got the order, he has either eat it or burnt it.” Grounds then said he had no receipt for the stock— that he had no showing for it. Deceased replied, “you don’t want any receipt, the order is all the receipt you need; and, besides, your note to Jim Cooksey is credited with eight hundred dollars for the mules and jack.”</p> <p>During this talk between Grounds and the deceased, the defendant was squatted down at the southeast comer of the saloon, whittling, and once he muttered something which the witness did not understand, Ro one paid any attention to what he said. Witness was leaning against the post at the southeast corner of the saloon, and was closer than any one else to the defendant. Just after the deceased said that Russell either had the order or had eat or burned it up, the defendant interfered in the conversation and said either “I have not seen any such order,” or “you did not have any such order.” Witness did not remember whether defendant did or did not use an oath in connection with the remark. Deceased turned towards defendant and said: “Till Powers, you are sitting there and telling a G—d d—d lie for Dock Grounds.” After some further conversation between them, the defendant got up and said to the deceased: “ Come and let us go round here and talk this matter over, and we can settle it in a little while.” The deceased said “ Ro, talk it right here.” Defendant said “ Ro, come on around here and we can settle this in a little while.” Deceased then said: “All right, I will go with you any where.” Defendant, as he got up and spoke to the deceased, closed his knife and put it in his pocket. Then they turned around the southeast comer of Chapman’s house, about thirty feet from where witness was standing, and there they disappeared from his view in an alley between Chapman’s house and Roe’s store house. From their manner and actions, the witness did not think they were angry, and he expected no trouble between them. Before defendant invited the deceased to go around the house he got up and walked to the front of Roe’s store, some twenty-five or thirty feet distant, and then returned. Witness kept his position at the post, and in about a minute and a half or two minutes after defendant and the deceased left the front of the saloon, he ” heard some one say “ he has cut Jack’s throat.” Witness then sprung in front of the saloon door, and there saw the deceased within a few feet of the door, with his throat cut. The blood was spurting from his neck for two or three feet. He came, entirely out of the front door of the saloon, and as he reached the door he said: “I am cut; send for a doctor; Til Powers cut me.” Witness caught hold of him, laid him on the floor, and told him to keep quiet and not to talk. The deceased, as witness laid him down, asked for a pistol. Witness caught the lips of the wound with his fingers, and tried to hold them together. The blood spurted all over his hands and clothing. Deceased fainted soon after he was laid down, and before the doctor came. He was in his shirt sleeves and had no weapons upon him. He was a medium sized man. Witness stayed with him until he died. The witness first saw defendant after the difficulty when the latter got on his horse in front of the saloon, and loped off towards the railroad.</p> <p>Cross examined, the witness said he was a merchant at Abilene, and had been supplying Dock Grounds with provisions and things for his ranch. On the Sunday previous to the killing, witness received from Dock Grounds an order telling witness to bring with him on Monday two pocket knives, one of them for defendant and the other for a negro named George. Witness, on the evening of the killing, took the knives with him to Merkel, and delivered them to the defendant, telling him one was for himself and the other for the negro who was bossing for Dock Grounds. Witness reached Merkel about five o’clock in the afternoon, which was about an hour before the killing. When witness saw the deceased with his throat cut, the blood was spurting about three feet a little to the left of front. There was a trail of blood from the north (back) door of the saloon to the front door of the saloon. The blood was spurting at intervals like the beating of the heart.</p> <p>Re-cross examined, the witness stated that the knife exhibited to him on the stand was in every respect similar to one of the knives delivered by him to the defendant. The knife is known as the “ cattle man’s knife.” It is a large knife with a long large blade, another blade not so long and known as the tobacco blade, and a third and still smaller blade. The knife delivered by witness to defendant was a new knife, never used up to that time.</p> <p>J. E. Garrett, a confectioner at Merkel, was the next witness for the State. He was standing at the middle post in front of Coggin & Vicker’s saloon when Jack Eubank was killed. This witness gave substantially the same account as the previous witness, Clayton, had given of the colloquy between Grounds, the deceased and the defendant just before the two latter went around Chapman’s house. During the colloquy the defendant was sitting down, whittling with the duckbill or tobacco blade of a new pocket knife. Grounds and the deceased were disputing about an order which the latter claimed the former had given on D. Y. Russell for some stock. Deceased told Grounds that he, Grounds, was drinking, and that they could arrange the matter some other time, when he was sober. Grounds first denied that he had given the order, and afterwards admitted that he might have given it, but claimed that the deceased had not given it to D. Y. Russell. Deceased asserted that he had given the order to Russell, and said that if Russell did not have the order he had either burned it or chewed it up. Defendant then spoke up and said he knew d—d well that Grounds had never given deceased any such order, and knew d—d well that “Powers” (evidently meaning Eubank) had never carried any such order to D. Y. Russell. The deceased then said, “Til, you sit here and tell a lie.” Defendant then got up and said to the deceased, “Jack, come and go round here with me and we can settle this in a little while.” Deceased replied: “Why not talk it here?” The defendant said: “No, come and let’s go round here and we can settle this in a little while.” Then the deceased got up and they went round the southeast corner of the saloon and disappeared from the witness’s view. Within a, minute or a minute and a half the witness heard some one say, “he has cut Jack’s throat.” Witness looked and saw the deceased about the middle of the saloon, he having come in at the back door. He was coming in a trot, with the blood spurting from his neck. He came entirely out of the front door, and Mr. Clayton caught him and laid him down on the floor. As he staggered to the front door he said: “Send for a. doctor; Til Powers has cut me.” Witness then looked at the back door of the saloon and saw the defendant there with his left hand on the door facing, and in his right hand the knife with which he had been whittling. Witness next saw him running down the railroad on his horse as fast as the animal could carry him. Mr. Coggin and Mr. Vicker pursued and brought him back. Deceased, as he came through the saloon, had on his white Stetson hat; and here the witness identified the hat and also the knife. On the left side of the hat, just behind where it covered the left ear, and close to the hat band, there is a cut, apparently made with a sharp instrument. The cut extends forward and in a diagonal direction for about a third of the width of the brim, and there an offset is in it as if another wrench of the instrument was required to move it further. From the offset the cut extended diagonally and downwards to the outer edge of the brim. The blood was on the large blade of the knife, not the blade with which the defendant was whittling. When, after the difficulty, the defendant was at the back door of the saloon, he had in his hand the same knife with which he had been whittling, but the largest of the blades was open when he was at the door. When the defendant and deceased went round the house witness did not think they were mad, and he did not pay much attention to them.</p> <p>Gus Vicker, for the State, testified that he was in his saloon in Merkel at the time of the difficulty, and heard the conversation between Grounds and the deceased. They were disputing about an order. A few days previous, witness saw Grounds sign an order on D. Y. Russell for a jack and a span of mules, which he was to turn over to the deceased for Jim Cooksey. Grounds executed the order in the saloon and turned it over to the deceased. The jack and mules were valued at eight hundred dollars, and were to go as a credit on a note which Grounds had given to Cooksey, and which Doctor Richardson was holding for Cooksey, as witness supposed. After the. jack and mules were brought in by the deceased, witness saw Doctor Richardson credit the note with eight hundred dollars, by writing the credit across the back of it., In the colloquy between Grounds and the deceased, in front of the saloon, the deceased wanted Grounds to pay him for going' after the stock. Grounds said he had no showing for the stock, and that Cooksey ought to pay deceased for going after it. Deceased saia that Cooksey had not employed him to go after the stock, and he did not look to him for his pay; but that he, Grounds, had employed him, and that he looked to him for his pay. Grounds said he had no showing for the stock, and deceased told him he had turned the order over to D. Y. Russell, who was Grounds’s book keeper, and that the note had been credited with eight hundred dollars. Grounds said he had given no order, and that no order had been delivered to Russell. Deceased replied that Russell either had the order or had eaten or burned it up. Mr. Coggin, who was sitting by them, spoke up and said: “Dock, you don’t mean to say you never gave any order; I saw you give it.” Grounds then said to Mr. Coggin: “If you say I gave the order, it’s all right.” During this time the defendant was sitting at the southeast corner of the saloon, whittling. When Grounds denied giving the order, defendant spoke up and said something about the order, or that he did not understand the matter. Deceased informed him that it was none of his business; that it concerned Grounds and himself, and that they could attend to their own affairs. Defendant then got up, walked to the gallery in front of Roe’s store, and then walked back to the saloon. Witness gave the same account as previous witnesses of what next transpired, and until the deceased, with his throat cut, came through the saloon from the rear. It was witness who exclaimed: “He has cut Jack’s throat,” as the deceased reached the counter, leaned against it and said: “Til Powers has cut me; give me a drink of water.” Before witness could get the water, the deceased tottered to the front door, where Mr. Clayton caught him and laid him on the floor. Just as witness returned behind the counter he looked to the back door and saw defendant standing there, with his left hand against the door facing, and his knife in the same hand. He appeared as though he was coming into the saloon, and witness picked up a pistol, threw it down on him and said: “Don’t come in here; you have come far enough.” Just then Mr. Coggin ran in and said: “We mustn’t let him get away;” and witness immediately started to the back door at which defendant had been standing, but when he reached the door the defendant had got into the alley between Roe’s and Chapman’s. As witness reached the north end of the alley he saw the defendant at his horse, and twice hallooed at him to halt, or he, witness, would shoot him. Mr. Coggin told witness not to shoot defendant, and defendant mounted his horse and loped off. Mr. Coggin jerked the Winchester rifle from Grounds’s horse, jumped on the horse and pursued the defendant. Witness got a horse and followed, but Mr. Coggin had caught the defendant before witness caught up with them. Deceased was in his shirt sleeves and was wearing a white hat, which the witness here identified. Deceased had it on when he came into the saloon after he was cut.</p> <p>On cross examination the witness said he knew defendant and deceased prior to the difficulty, and had never noticed or known of any bad feeling between them. Neither of them manifested any ill feeling when they went around the corner of the saloon. Witness did not remember hearing defendant say that he knew d—d well that Grounds had given no such order.</p> <p>Other witnesses for the State gave substantially the same testimony as that already narrated respecting the incidents prior and subsequent to the fatal difficulty, and there is no occasion to recapitulate them.</p> <p>D. Y. Russell, for the State, testified that he was in the employ of W. A. Grounds as his book keeper. Deceased, a few days before his death, came to Grounds’s ranch and delivered to witness an order from Grounds for two mules and a jack, and witness turned them over to deceased. The order had since been mislaid; witness had searched for but failed to find it. Cross examined, the witness said that defendant was not a strong man. Witness had heard him complain of his lungs, and had known him to fail to mount horses on the ranch.</p> <p>W. A. Grounds, the eleventh witness for the State, testified that he was commonly called “Dock” Grounds, and was engaged in the stock business, raising horses, mules and cattle. Defendant was in charge of the witness’s ranch as “boss.” The deceased and one Casper had formerly had charge of witness’s business, and the defendant succeeded them in charge. Witness never talked to any one about discharging the defendant and putting the deceased in his place. Asked by prosecuting counsel if he had not had frequent difficulties with the defendant, and if there was not bad feeling between him and defendant on account of these difficulties, the witness replied that he had had one or two little “spats” with defendant, but that there never was any bad feeling between them. [This question and the answer are the subject matter of the sixth head note of this report.] Witness never told defendant he was going to turn him off and put deceased in his place. Witness was not contributing to the defense of this case, other than, what he owed the defendant, but he did not know how much he owed him. “The understanding is that whatever I owe him I am to pay for his defense.” Witness liked the deceased and was sorry he was killed; he was a friend of witness and a good fellow. “I like the defendant, too; he is a good fellow.” Witness had arranged with deceased lo take a herd of cattle up North in the spring. Defendant knew of that arrangement, and said it was all right, and that he would stay at the ranch and deceased could take -the herd.</p> <p>Cross examined, the witness said the defendant was a weak man, and complained about his chest and that his collar bone was broken. Witness had seen other boys au the ranch saddle defendant’s horse for him, because he was weak. Defendant, in the spring of 1886, asked witness to employ the deceased, and said that deceased was a good hand with stock. Defendant told witness to employ the deceased to take the herd, and witness did so.</p> <p>Perry Chapman, for the State, testified that he lived in a house adjoining Coggin & Vicker’s saloon at the time Jack Eu-bank was killed. Witness’s house stood on the lot east of the saloon, and Roe’s business house stood on the lot next east of witness. These lots were each twenty-five feet wide, and all the houses front south. The saloon and Roe’s house extend to the street, but witness’s house sits back from the street about twenty-four feet. It adjoins the saloon on the one side, and on the other side extends to within four feet of Roe’s building, and runs north and parallel with Roe’s west wall for the distance of twenty-four feet. Between the houses of Roe and the witness there is an alley or pass way four feet wide, leading from the front of witness’s house to his back yard. From the south front of witness’s house to the street there is an open space, the width of the lot and about twenty-four feet deep. Witness’s house is cut into two rooms, the north or rear room being the kitchen, from which a door opens on the east into the four-foot alley. In the north wall of the kitchen there is a slide window, and, at the time in question, the slide was pushed back, and there was nothing to obstruct the view through the window. The door into the alley from the kitchen was open.</p> <p>About six o’clock in the evening of September 30, 1886, witness and his wife had seated themselves in the kitchen to eat their supper. The table stood against the north wall, and its center reached about the center of the window. Witness was seated on the south side of the table, and near its southwest corner. Just after sitting down his attention was attracted by footsteps coming through the alley on the east of the house. The defendant and the deceased, approaching from the south, came into witness’s view in front of the door, defendant being a little in the lead. Just as they got opposite the door the deceased seemed to halt and said: “ This is far enough to go; if you want to talk, you can talk here as well as anywhere.” Defendant replied: “Eb, come on around here a little further; we can settle this in a minute,” or something to that effect. While they were at the door the defendant had a closed knife in his hand. Witness saw no weapons on the deceased or in his hands. It seemed they had been talking about an order which Grounds had given deceased. As defendant made the reply to the deceased he started on and the deceased followed him. They proceeded north in the alley until they came into witness’s view through the window, and just before they got within the view of witness he heard the deceased say: “Why, Til, you tried to make me out a liar before all those men.” The defendant said: “Aboutwhat?” Deceased replied: “About that order that Grounds gave me.” Defendant said that deceased was a liar; that Grounds never gave any order. Deceased then called defendant a stinking liar. Just at that time the witness heard the defendant open his knife, and the deceased said: “Would you have the impudence to draw that knife on me ?” Defendant replied: “Yes, and I am not afraid to use it.” Just then the deceased put out his open left hand to shove the defendant off of him, and the defendant then made a raking cut with the knife. Deceased turned around to his left, and witness saw blood spurting from his neck. It was the left side of the neck that had been cut, and it was this first lick with the knife that cut deceased’s throat. This the witness knew, because the blood was spurting from his neck before the defendant got at him again. An old ax, which had part of its handle broken off, was lying at witness’s wood pile, about six or seven feet from where the parties were standing, and, as deceased turned around and witness saw the blood coming from his neck, he went to the ax, stooped down and raised it with both hands. Defendant followed him, and just as deceased raised the ax the defendant was upon him. Deceased struck the defendant on the head with the ax, but did not seem to have given him much of a blow, for, though it staggered defendant, it did not knock him down. Deceased, holding the ax with both hands, raised it a second time and again struck the defendant on the head, and knocked him down. Just as the deceased made this second stroke with the ax, the defendant made an under-cut with his knife at the deceased. If this cut had taken effect the witness judged, from the position of the parties, that it would have struck the deceased between his waist and his breast. The defendant and the ax fell together, and the deceased turned and went in a zigzag course to the north door of the saloon. The blow which knocked defendant down was not a severe one, and he was up again instantly. Witness "got up and went out to see what had become of the parties, and when he reached where the fight occurred he saw the defendant standing at the north door of the saloon, with his left hand against the door facing. He then had the knife in that hand, and witness saw blood upon the blade. Witness stopped when he saw defendant standing at the door, and, in an instant, W. A. Grounds came through the saloon to the door, and said to defendant: “By G—d, yor have killed Jack.” Defendant replied: “No, I haven’t.” Grounds said: “Yes, by G—d, you have, and you had better leave.” Defendant replied: “ Sure enough,” and then turned and left. He had to retrace the alley through which he had come, and the next seen of him by witness he was on his horse going rapidly down the railroad. Deceased seemed to be very weak when he picked up the ax. He picked it up with both hands, and each of the two blows he struck the defendant was struck with the side of the ax. There is a good deal more of this witness’s testimony in chief, but it is believed that nothing material is omitted.</p> <p>Cross examined, the witness stated that he was certain that his attention to the parties was first attracted by their approaching footsteps, and not by their voices. The defense here asked witness if at the examining trial he did not testify that his attention was first attracted to the parties by their talking. The witness thought he had not so testified at the examining trial, but said that the transaction was then fresh in his mind, and that, if he did so state at the examining trial, that statement was correct. The record of the examining court being introduced, the witness’s testimony on this point was found to accord with the version of the defendant’s counsel. The defense asked the witness if at the examining trial he did not state that both the parties were in his plain view throughout the difficulty, except that he could see only a portion of Eubank’s body when he stooped to pick up the ax. Witness replied that if he had so stated at the examining trial that statement was true. The record being again introduced the counsel’s version was verified. Witness stated that he saw the defendant fall full length on the ground when struck the last time with the ax. Being asked to explain how he could see defendant prostrate five feet from the window when he could not see the point at which the ax was picked up, eight or ten feet from the window, the witness replied that he knew the defendant fell his full length on the ground, because he (witness) saw defendant’s full print in the dust. Nothing more of any significance was elicited by the cross examination. On his' re-examination the witness stated that it was an open, space from where the difficulty occurred to the back door of the saloon.</p> <p>Mrs. Sarah Chapman, the wife of the preceding witness, testifying for the State, gave substantially the same account as her husband of what transpired between the defendant and the deceased in the alley at the time of and immediately prior to their collision. She stated, however, that while they were passing through the alley the deceased twice protested they had come far enough and that the defendant each time insisted on going further.</p> <p>A. J. Coggin, for the State, gave an account of his pursuit and capture of the defendant. Seeing the defendant mount his horse the witness ran to Dock Grounds’s horse, which was hitched close to the defendant’s. Witness jerked a Winchester rifle from the saddle, mounted the horse and made close pursuit of the defendant. The pursuit was continuous. Defendant turned to the left and got into a corner formed by some wire fences, and then turned towards town. This enabled the witness to head him off. Witness turned his horse and three times told the defendant to stop or he (witness) would shoot him. Defendant did not stop until the witness, having headed him, had got within thirty or forty feet of him. The distance from there to the saloon was about three quarters of a mile, and not more than five minutes had elapsed since the difficulty occurred. Witness thought it was not that long until the defendant stopped. Defendant had been drinking some, and was then excited and agitated. As he stopped, the witness said to him, “you have killed a friend of mine, and you must go back to town.” He replied: “Ho, I didn’t.” Witness said: “Yes, you have,” and then the defendant said: “If I did kill him nobody saw me do it.” (This was the testimony which. elicited the ruling formulated in the seventh head note.) During this conversation the witness was sitting on his horse about thirty or forty feet from defendant, who was on his horse. This was the first conversation which passed between witness and defendant, and it occurred as soon as defendant held up his horse, and not more than five minutes after witness saw the deceased at the saloon with his throat cut It occurred before the witness had the defendant to start back to town. After it occurred the witness told defendant to get in front and ride back to town, and he did so. Witness had seen Yicker following defendant through the Chapman alley, and saw him throw his pistol down on the defendant and tell him to halt; and witness told Vicker not to shoot defendant.</p> <p>Cross examined, the witness stated that the defendant subsequently said to him: “ Uncle Jack, I would not have done you this way; I am a friend of yours and Lewis’s,” meaning witness’s son. Witness replied that he could not help it, and that he, defendant, must go back to town, and witness then took him back to town. Witness and Vicker afterwards took defendant to Abilene and delievered him to an officer. Witness saw defendant mounting his horse, and then mounted Grounds’s horse and pursued him.</p> <p>The State put in evidence the knife of the defendant, the hat worn by the deceased, the axe and a digram of the premises, and rested the case.</p> <p>The defense first introduced A. J. Coggin and elicited his testimony about the colloquy in front of the saloon between deceased, Dock Grounds and the defendant. Hearing loud talking in front of the saloon the witness and Mr. Flannigan went and sat down by Grounds. As they did so the witness heard Grounds say: “ It is not my place to pay it; Cooksey is the man.” Deceased said he couldn’t go to Cooksey, and that Grounds was the man who employed him to go. Grounds said: “Did you receipt for the mules?” and deceased replied: “I did not have to receipt for the stock; I took the order you gave me and turned it over to D. Y. Russell.” Grounds said: “I asked Russell about the order and he said he knew nothing about it.” Deceased replied: "If D. Y. Russell has not got the order he has eat or burned it.” Defendant then said something, and the deceased replied: “ There is no use for you to lie about it; there were several persons present at the time.” Witness then asked Grounds if he denied giving the order, and told him that he, witness, had seen him give it to the deceased. Grounds replied: “Uncle Jack, if you say I gave the order it is all right.” About that time the defendant came and sat down by witness and said: “Uncle Jack, what will satisfy you boys for going after the mules and jack; will five dollars satisfy you?” Witness told him it would, for he had heard the deceased say he intended to charge five dollars for the trip. Defendant then said he would go and get the money and settle the matter without any fuss about it. He then got up and walked east to Roe’s store, and went up on the gallery in front of it, and then turned and came back. Roe’s store was about thirty or thirty-five feet from where the parties were sitting in front of the saloon. When defendant returned from Roe’s store he squatted down by witness and said- “I will try to get the money and settle it off.” From this point until deceased came through the saloon from the rear, and some one said, “ he has cut Jack’s throat,” the testimony of this witness accorded substantially with that of the State’s witnesses. Recurring to liis trip to Abilene with the defendant in custody, he stated that he was with defendant nearly all the time from the latter’s arrest until their arrival at Abilene, and was certain defendant did not change his clothes during that time. Witness occupied the same seat with defendant on the railroad car from Merkel to Abilene, and he observed no blood on his clothing from the time of his arrest uni- he was delivered to the officer at Abilene.</p> <p>Bob Burch, the officer at Abilene to whom the defendant was turned over, testified that he saw no blood on defendant’s clothing while he was in witness’s custody. Several other witnesses testified that there was no blood to be seen on the defendant’s clothes after the difficulty. One of them tyas J. V. Cunningham, the sheriff of Taylor county, who took the defendant from Abilene to Merkel in a hack, the day after the killing. Before starting and while the witness was hand cuffing the defendant, the latter complained of his left arm, and asked witness not to put the hand cuffs on that arm too tight. Witness saw the arm; it was bruised and swollen. Defendant also complained of his head.</p> <p>T. C. Short, for the defense, testified that he was at Merkel the day after the killing, and went behind Chapman’s house to where the conflict between defendant and deceased had occurred, and there saw a small piece of timber, about an inch thick, two or three inches broad, and about two or two and a half feet long. It lay east and a little north of the north corner of Chapman’s house, and a similar piece lay not far from the back door of the saloon. Defendant is a weak man, and complains of his chest and lungs, and said there was something the matter with one of his arms. Before the killing he frequently told witness that his collar bone had been badly mashed. He and deceased seemed to be on friendly terms, and witness knew of no trouble between them.</p> <p>J. Santos, for the defense, corroborated the other witnesses as to the apparently friendly terms which existed between defendant and the deceased prior to the difficulty. He, also, observed the piece of lumber behind Chapman’s house spoken of by Short.</p> <p>Doctor John Rodman, for the defense, stated that he was called to see the defendant at the Abilene jail, the day after the killing, and found him complaining of his head and left arm. Two contusions were on his head, and the small bone of his left arm was broken just above the wrist. It was not a serious fracture and required no treatment. The skin was abraded, and the arm was swollen and bruised. The injury to the arm had the appearance of having been inflicted with some light instrument like a stick or plank. The wounds on the head and arm seemed to be fresh.</p> <p>Cross examined, the witness admitted that the abrasion of the skin of defendant’s arm might have been made with hand cuffs, and the fracture of the bone either by a blow with a light instrument or a light blow with a heavy instrument.</p> <p>John Bowyer, for the defense, verified certain measurements made of the door, windows, table, etc., in Chapman’s kitchen, for the purpose, doubtless, of showing the positions of Chapman and his wife during the collision between the defendant and the deceased. This was the last witness introduced by the defense.</p> <p>In rebuttal the State recalled W. A. Thornton, who testified that he put the manacles on the defendant when the latter was brought back to Merkel from Abilene. Witness chained defendant’s feet and wrists with heavy chains, and heard him say nothing about the chains hurting him, nor anything about his arm being broken, but he said that witness pinched him in fastening the chains.</p> <p>Gus. Vicker and A. J. Coggin, in rebuttal for the State, said they were present when Thornton put the chains on defendant, and the latter made no complaint of the chains hurting him, or about his arm being broken. With this evidence the case was submitted to the jury. The statement of facts covers some fifty pages of the record, and its contents are much condensed in this report.</p>