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SUPREME COURT RECORDS PAGE 19
File contributed by Lisa Lach and
proofed/formated by Dena Stripling Tex.Ct.App. 1883. SAM LEWIS v. THE STATE. 15 Tex.App. 647, 1883 WL 9007 (Tex.Ct.App.) Cite as: 1883 WL 9007, *4 (Tex.Ct.App.)) APPEAL from the District Court of Fayette. Tried
below before the Hon. L. W. MOORE. *1 By indictment, filed in the District court of
Fayette County, on November 17, 1879, the appellant was charged with the
murder of William FINKELSTIEN, on the twenty-first day of October, 1879, by
striking him on the head with a shovel. The conviction was for murder in the
first degree, and the punishment awarded by the jury was confinement
in the penitentiary for the term of his natural life. The trial was had in
November, 1882. Nat HOLMAN was the first witness for the State.
He testified, in substance, that he knew the defendant, but was not
acquainted with William FINKELSTIEN, the deceased. The first and only time he ever
saw the deceased was at his, the witness's, gin, in Fayette county, Texas, on
the evening of _______, 1879. Deceased was then alive, but suffering
from a wound on the right side of his head, just above and behind the ear. The
wound was about two and a half or three inches long and about a half inch
deep. The skull was crushed in, but the skin was not broken. The indentation
was large enough to hold an egg. When the witness reached his gin that day,
he found the deceased lying on some bagging under the cotton shed, wounded
as described, with the blood flowing from his nose, mouth and ears. He was
then alive, but speechless. He muttered unintelligibly several times before his
death, which occurred some four hours afterward. Several persons were with
the deceased when the withess reached him, and were pouring water over
his head, among whom Cellis HOLMAN and Felix BRIDGE. Cellis HOLMAN showed the witness the shovel with
which the wound was said to have been inflicted. The witness knew the shovel
well. It had been in use at the gin for several years, being used for
shoveling cotton seed. It was a large iron shovel, with a handle about four feet
long, and weighed some eight or ten pounds. At the place where the
handle fitted in, commonly called the eye, there was a double thickness of
the iron, making the entire thickness of the iron at that place about a
quarter of an inch. Witness bought this shovel because of its peculiar make,
and had never seen another like it. If the wound on the deceased was
actually inflicted by this shovel, he must have been stricken with the eye of it,
as no other part of the shovel would make such character of wound.
Witness did not go up into the gin that day, but went up there the next day?? Proceeding with his testimony, the witness said:
"When I went up into the gin next morning, I found, in the main room, a
pool of blood, about the middle of the walk running from the front door
back to the gin stand. This pool of blood was near where the shaft comes up
through the floor. It was at a point about opposite the middle of the second
left hand cotton seed stall, as you go into said room from the front door.
There were three cotton seed stalls on the right hand side as you went in
said room from the front door, and each stall was separated from the other by a
plank partition. There were also three stalls on the left hand side, but the
one nearest to the gin was a sort of half stall. These stalls were usually
filled with cotton seed. A man standing at the gin stand could not see to
the floor where the blood was, but could have seen, around the corner of
the second stall, any person standing erect. I have owned the gin for several
years, and am perfectly familiar with its interior." Witness saw
the defendant just before the killing, but saw no more of him until the last
term of the court. *2 On cross-examination, the witness stated that
he was not present, and knew but little about the killing. He reached
the gin about two o'clock p. m. He had no recollection of having previously
seen the deceased. He was not at the witness's house on that morning. Morgan
BRAKER, Cellis HOLMAN, Felix BRIDGE, and four or five transient white men
were at the gin when the witness arrived there. One of these white men
was named RUSSELL, and another ROBERTS. Witness was present at the inquest held
by justice SMITH, and wrote down the testimony, but did not remember who
constituted the jury. Witness was taking no particular interest in the prosecution,
but had said that if the defendant got his just dues he would be
hung. Cellis HOLMAN was feeding the gin on the day of the killing. The defendant
was at the time, and had been for three months, in the employ of the
witness. Witness knew of no difficulty between the defendant and Cellis
HOLMAN. With reference to this witness's testimony, the transcript recites as
follows: "In the absence of defendant's counsel, the
district attorney asked where he was, when witness replied in a low voice: 'I
guess he has got enough of it.' The court did not hear the remark. The attorney
for the defense had absented himself without the knowledge of the district
attorney and whilst the district attorney was examining the
witness." Cellis HOLMAN was the second witness for the
State. He testified that he knew both the defendant and the deceased. The
latter was killed at Nat HOLMAN's gin in Fayette county, in the month of
October, but witness could not recall the year. Witness was present when
the deceased died. He was also present and testified before the coroner's
inquest. Witness was feeding the gin on the day of the homicide. The duty of the
defendant in the gin was to shovel up cotton seed in the small room
containing the gin stand, and take them to the stalls in the large room. For this
purpose he used a large iron shovel, which is the weapon with which he killed
the deceased. He had often used the shovel and was familiar with it. While witness was at his work at the gin stand
on that day, the defendant brought him a woman's sack, saying that he had
just bought it from a peddler down stairs, and asked if witness thought it
large enough for his, defendant's wife. Witness told him to try it on,
and that if it would fit him it would fit his wife. About this time the
deceased came up stairs and asked witness if he did not wish to purchase
something. Witness replied that he did not, that he had no money. Deceased
replied: "Yes, you have plenty of money." Witness then told him that possibly
he would go down stairs presently and look at his goods. Deceased then
turned to go down stairs, when defendant demanded of him to take the sack
back, as it would not fit his wife. The deceased looked back and said:
"I don't do business that way; that is the way children do business," and
walked on. Defendant thereupon reached back and secured the iron shovel. He
caught it by the handle, threw it up in a striking position, and followed the
deceased. When defendant got just about the corner of the partition dividing
the first cotton stall nearest the gin stand on the right hand side
going from the gin stand to the front door, the witness saw him strike forward
with the shovel. Witness could not see FINKELSTIEN, the deceased, at that
time, as he had passed the said partition, but could see the defendant
plainly. He saw the shovel as it went down, but could not see what it struck, as,
when it went down, the shovel part passed down on the other side of the
partition from the witness. The gin was running at the time, and making so
much noise that the witness could not hear the sound of the blow, or whether
any thing was said when it was inflicted. *3 After striking the blow the defendant came
back to the gin stand, threw down the shovel, and said: "D____n him, I
got him!" Witness stopped the gin, ran around to the place where he saw the
defendant strike the blow, and found the deceased lying forward on his face, in
the walk, with his head at a point about opposite the middle of the second
stall. He had a wound on the right side of his head, just back of the ear,
and was bleeding profusely. The defendant came up, and witness asked him:
"Sam, what did you kill the man for?" Defendant looked at the man,
laughed, said nothing, sprang out of the window and ran towards the river bottom.
Witness ran to the door and called a man who came with the deceased to the
gin, told him FINKELSTIEN was killed, and he and witness, after washing
deceased's face, carried him down stairs and laid him on some cotton bagging under
the cotton shed. Witness saw the defendant plainly when he struck the
blow. Witness, defendant and deceased were the only parties in the gin at the
time of the killing. Witness saw no more of the defendant until at
the previous term of this court. He, witness, showed Nat HOLMAN the shovel
with which the blow was struck on the same day. It was a heavy shovel
with a handle three or four feet long. The shovel was usually used with both
hands. Defendant held it in his right hand when he struck the blow.
Defendant did not offer to assist the witness, either to wash deceased's face or
to take him down stairs. He merely looked at deceased after he had felled
him, laughed and ran off. Witness thought he could recognize the man who
was with the deceased on that day, and pointed out a man present in court as
the individual. He was not certain the individual indicated was the man,
but believed him to be. Cross-examined, the witness stated that the
deceased had a whip in his hand when he came into the gin, and still had it when
he started out. It was rather a large sized whip, but witness did not
take close enough notice of it to be able to describe it. It was lying near
and at the side of deceased when witness got to him after he fell. Witness
did not on a former trial of this case say that after the deceased fell he
still held the whip in his hand. Deceased made no effort or demonstration
to strike the defendant with the whip. If he had, witness would have seen it.
Witness at no time told Tom BRAKER and Felix BRIDGE that he did not see the
killing. Witness said nothing before the inquest about the defendant
laughing after the deceased fell, because no question was propounded to him
on that point. He merely stated that defendant looked at the man and ran
off. Previous to this killing witness and defendant had had
difficulties--one or two little fights--but had made friends, and witness had no
grudge against him at the time. The witness denied that he had at any time after
the killing told Handy HOLMAN that he now "had Sam just where he
wanted him;" that he "was the only witness against him and could swear what he
pleased." He had never threatened to "get even" with the
defendant. Witness did not examine the sack purchased by the defendant. When defendant
asked him if the sack would fit his wife, witness told him that it would if
it would fit him. There were three stalls on each side of the big room.
Witness was standing at the gin stand, feeding it when the blow was struck, and
was facing the big room. To feed a gin requires care, but in feeding one the
witness could look about and around without cutting his fingers in the
gin. Witness denied that he had ever said to defendant's counsel that, when
he asked defendant why he had killed the peddler, the defendant asked:
"What! have I killed him?" *4 Re-examined by the State, the witness
testified that he was standing some nine or ten feet from the defendant when he
struck the blow, and was looking directly at him. The deceased could not have
struck the defendant without the witness seeing him. Witness did not know the
exact distances in the gin, and when he spoke of distances did so upon
opinion. When witness went to the deceased after he had fallen, the whip lay a
little to his right on the cotton seed. Deceased had the whip in his hand
when he started off. The first stall on the right hand side going from
the gin stand to the front door is partitioned from the second stall by a
plank partition about seven feet high, but on the side nearest the gin stand
there was no partition between the first stall and the way leading from
said gin stand. The cotton seed in said stall was kept from falling in by
an old press door, which was about four feet long, and three and a quarter
feet wide. Witness could easily see over said door, and there was nothing
to obstruct his view beyond, between the gin stand and the dividing
partitions between the first and second stalls. M. LAUDERSTIEN was the next witness for the State.
He testified that he was the man pointed out by the last witness as the
companion of the deceased at the time of the killing. The witness Cellis
HOLMAN, was mistaken; this witness was not the companion of deceased on
that occasion. The deceased's companion at that time was one CAIMER, now in
Mississippi or Kentucky. The witness, however, had traveled with deceased
before his death for five years, peddling, and they were together on
Holman's place about a week before the killing. The witness Cellis HOLMAN
had often seen this witness and deceased together. Here the State closed. T. W. SMITH was the first witness for the
defense. He testified that he was a justice of the peace at the time of the
homicide, and held the inquest on the deceased's body. The papers containing the
evidence were handed by witness to B. D. SHROPSHIRE, county attorney,
and he failed to turn them over to the proper officers; for which failure
the witness was indicted. Witness had not since seen the said papers, and
had no idea what had become of them, nor could he now remember their
contents. Witness could not remember the parties who constituted the
coroner's jury. At this point the district attorney stated that he would admit the
loss of the papers, and consent that parol evidence be received of their
contents. C. MICHAELIS was the next witness for the
defense. He testified that he was a carpenter by trade, and that he could draw a
correct diagram of a given place. He drew the diagram in evidence, which is
a diagram of the Nat HOLMAN gin, in Fayette county. It was prepared on the
day preceding this trial by the witness, who, for the purpose of drawing it,
visited the said gin in company with the defendant's counsel and two
colored men. The spots in the center of the building, as indicated on the
diagram, represented blood spots, though witness could not of his own
knowledge say that they were blood spots. The witness, however, saw the
spots. They were on a small square movable platform in that room, which
platform covered the hole in the floor through which the shaft passed when the
gin was in motion. The large room is thirty-four feet long. The distance from
the gin stand to the blood spots is twenty-eight feet. There are stalls for
cotton on each side of the large room, but there were no partitions in them
when witness was at the gin. It would depend upon the height of the
partitions whether a man could see from the gin stand to the middle of the
second stall. *5 Cross-examined, the witness stated that, if
the partition between the first stall on the right as you go from the gin
and the way running between the stalls was a door four feet by three and a
half feet, a man at the gin stand could easily see to the corner of the
partition between the first and second stalls. I. B. HOLLOWAY, district clerk, testified, for
the defense, that he was district clerk when FINKELSTIEN was killed. He
knew nothing about the papers containing the proceedings of the coroner's
inquest in that case. He had never seen such papers. Handy HOLMAN was the next witness for the State.
He testified that, when FINKELSTIEN was killed, he was in the field on
the Nat HOLMAN place. Witness had a conversation with Cellis HOLMAN a few days
after the killing occurred, in which he asked Cellis if he saw the killing,
to which Cellis answered that he only saw the defendant raise the shovel
and make the blow; that he did not see the blow when it fell. Cellis HOLMAN
and the defendant had a difficulty a short time before the killing. Tom BRAKER testified, for the defense, that he
lived on Nat HOLMAN's place, and was familiar with the gin house. Witness was
at the gin house a few days before this trial, along with the attorney for
the defense and other gentlemen, and pointed the blood spots out to
them. Witness knew them to be blood spots, because he saw them shortly after
the killing. There were stalls on each side of the big room, six or
seven feet high. A man standing at the gin stand could not see the point where
the blood spots were. He could, however, have seen a man throw up a
shovel with a five foot handle. Witness could not say that a man standing a few
feet back from the blood spots could not be seen from the gin stand. The
partition between the end of the first stall, near the gin stand, and the
walk leading by it was not, at the time of the killing, constructed of an old
three foot door, but was a partition six or seven feet high. This the
witness knew, because his cotton was in that stall. Witness saw the woman's sack,
which was the cause of this difficulty. It was old, moth eaten and full of
holes. "If a man was standing behind the blood spots, and another was standing
a few feet behind him, and nearer the gin stand, a person at the gin stand
could see the latter, but not the former." Felix BRIDGE testified, for the defense, that he
was picking cotton in the neighborhood at the time of the killing. Soon
after the homicide occurred, Cellis HOLMAN sent for the witness and explained
to the witness how the homicide occurred. He said that the deceased was
a peddler, and, at the gin, sold the defendant a sack, with which the
defendant became dissatisfied; that defendant asked him if he, Cellis, thought
it would suit his, defendant's wife; that he, Cellis, replied to
the defendant: "It may suit you, but it won't suit your wife;" that
thereupon defendant offered the sack back to the peddler, and demanded return of the
purchase money; that the pedler replied: "I do not do business that
way," and turned and walked off, when the defendant picked up the cotton shovel
and followed; but that he, Cellis, did not see the defendant when he struck
the blow. *6 On cross-examination, the witness stated that
he was the defendant's father-in-law. This conversation occurred a few
days after the killing. The witness, at that time, was somewhat excited
about the affair. No one was present at this conversation, save the witness,
Cellis and the peddler's partner. Others came up afterward. Monroe RICHARDSON testified, for the defense,
that he was in the neighborhood when the killing occurred. Cellis
HOLMAN told him about the attendant circumstances the day after the
homicide occurred. He said, in that connection, that the defendant came running
by him, and said: "I have hit that fellow;" that he went up to the
man, and asked the defendant: "Sam, what did you kill this man for?" That
defendant replied: "What! Have I killed him? Is he dead?" and then jumped
out of the window, and ran off. Witness worked for Mr. Nat HOLMAN, and was
familiar with the gin. A man could not occupy the gin stand and see to the
middle of the second stall; at least, the witness could not. There were stalls
on each side of the big room. Witness did not know the height of the
partitions. Cross-examined, the witness stated that he did
not know whether or not the partition nearest the gin stand was formed of a
small door. No one was with witness when he had the conversation with
Cellis, deposed to. Witness had not thought of that conversation since, until
called upon to testify in this case. Nothing has occurred to fix this
conversation in the witness's mind. Witness had had no other conversation with
witness Cellis. Here the defendant rested. In rebuttal, the State produced several
witnesses who testified that the reputation of the State's witness Cellis HOLMAN
was above reproach or suspicion. Nat HOLMAN, recalled for the State, testified that
an old press door, four feet by three and a half, was used to enclose
the side of the first stall nearest the gin stand, which side was not
planked up. It was thus used to prevent cotton seed from falling out on the
walk. When used for this purpose, it was set up on its side. When not in
use, it generally lay flat on the floor. Witness did not know its position
on the day of the homicide. The general and requested charges are here
incorporated in full, in accordance with the direction of the court. The
general charge reads as follows: "The defendant is on trial, charged with
the murder of Wm. FINKELSTIEN, and pleads not guilty?? Every person of sound memory and discretion, who
shall unlawfully kill any reasonable creature in being, within this State,
with malice aforethought, either express or implied, shall be deemed
guilty of murder. Murder is distinguishable from every other species of
homicide by the absence of the circumstances which reduce the offense to
negligent homicide or manslaughter, or which excuse or justify the
offense. All murder committed with express malice is
murder in the first degree, and all murder committed with implied malice is
murder in the second degree, and the distinction between express and implied
malice determines whether murder is of the first or second degree. *7 Malice means that state of a wicked and
depraved mind fatally bent upon mischief. The important inquiry in determining the
existence of express malice is, do the external circumstances, the acts and the
conduct of the accused at the time, before and subsequent to the killing, if
such there be, indicate a cool and deliberate mind and formed design to
kill? If so, there is express malice. There is no certain or definite space of time
necessary to intervene between the formed design to kill and the fatal blow. A
single moment of time may be sufficient. All that is required is that the
mind be cool and deliberate in forming its purpose, and that the design to kill
is formed. If you believe from the evidence that the
defendant did kill Wm. FINKELSTIEN with express malice as before defined, you will
convict him of murder in the first degree. Implied malice is what the law implies from
every voluntary killing of a human being, when the circumstances, upon one
hand, show no express malice, nor upon the other any excuse justification or
mitigation, nor reduce the offense to manslaughter. Every voluntary killing
of a human being without deliberation, from some rash, inconsiderate
impulse, would be upon implied malice, and would be murder in the second
degree. If you believe the defendant did kill William
FINKELSTIEN without express malice, yet if you believe such killing was
committed under such circumstances as that malice is implied, as
before defined, you will convict of murder in the second degree. If you have any reasonable doubt of the guilt of
the accused, you will acquit, and so you will acquit of any grade of
the offense of which you have any reasonable doubt. If you find the defendant
guilty of murder in the first degree, you will assess his punishment at
death, or by confinement in the penitentiary for life. If you find him guilty of murder in the second
degree, you will assess his punishment by confinement in the penitentiary
not less than five years; in either case stating the degree of murder. The jury are the judges of the credibility of
the witnesses, and weight of the testimony. L. W. MOORE, Judge." The requested and refused charges read as
follows: "First. The jury are the sole judges of the
weight to be given to the testimony of each witness, and the credibility
of each witness. They can discard a portion of the testimony of a witness
or all of his testimony. A witness may be impeached by his own
contradictory statements, or by his character for truth and veracity in the
neighborhood in which he lives being successfully attacked. In either case the jury
has the privilege of discarding his evidence. Second. Although the law implies malice in case
of unlawful killing by means calculated to produce death, still in such case
the burden of proof does not shift from the State to the defendant, but the
burden remains on the State to prove the degree of the offense aliunde the
actual killing. *8 Third. Every person is presumed to understand
the probable result of his acts, and when an unlawful act is clearly shown
to have been committed, it is for the defendant to show facts which
mitigate, justify or excuse, so that a reasonable doubt at least may arise upon
the entire evidence as to his guilt. If the jury believe from the evidence
that the deceased, William FINKELSTIEN, said anything or committed any act
at the time of the killing, which would mitigate, justify or excuse the
killing, they should take into consideration such saying or act, and find their
verdict accordingly; that is, either find the defendant guilty of some
lower grade of offense than murder in the first degree or acquit the
defendant. Fourth. (Murder in the first degree has been
defined to you.) A murder committed under the influence of sudden rage,
resentment, passion or anger at some insult offered or wrong done to the
defendant by the deceased, at the time of the killing, cannot be murder in the
first degree unless coupled with something said or act done by the defendant
at the time, before or after the killing, tending to show malice as
defined by the statute. Fifth. In impeaching a witness by proving his
bad character for truth and veracity, such character must be notorious in
his neighborhood, and while the proof may be made by one witness, still, in
weighing the evidence, the production of one witness would not ordinarily
be satisfactory. So, in proving that his character is good for the same,
it should be notoriously good in the neighborhood, and one or two
witnesses to that fact will not ordinarily suffice." "These charges are refused because, so far
as they are correct legal propositions, and so far as the facts require
the application, they are embraced in the charge of the court. L. W. MOORE, Judge." "If the jury believe from the evidence that
there has been no malice proven, either express or implied, they cannot convict
the defendant of murder in the first degree. Where the fact of the killing has been clearly
shown, and that it was done under such circumstances as in law will
mitigate, excuse or justify the act, the law in such cases implies malice, and makes
the killing murder, but it would be murder of the second degree." "Refused because embraced in the charge of
the court. L. W. MOORE, Judge." The motion for new trial embraced the questions
involved in the opinion?? Where an absent witness is expected to prove
statements made by defendant himself, his motion for continuance must show
that they are part of the res gestae, or that the testimony is competent for
some other reason. An application for a continuance because an
attached witness had been released, without defendant's authority, eight
days before the case was reached for trial, was properly refused where it
failed to show that he did not learn such fact in time to have secured the
witness by the service of a new process. On a trial for murder, it was not error to
refuse to grant the defense time to take down the testimony. Newly discovered evidence as cause for a new
trial is not sufficient when its materiality, probable truth, and exculpatory
nature are not made manifest. An exception that "the court erred in the
charge" is too vague to invoke a revision of the charge given by the trial court,
but in felony cases it is the practice on appeal to revise the
instructions given to the jury. In a criminal prosecution for homicide the
defense reserved exceptions on the ground that during the progress of the trial
the judge absented himself from the bench and court room without notice to
counsel and that during his absence the state's counsel proceeded with the
examination of a state's witness and when the defense objected to the manner
of interrogation there was no judge present to sustain or overrule the
objection and illegal and damaging evidence went to the jury. But the
judge's explanation states that his absence was very brief and of necessity and
he supposed the counsel had taken notice of it; that counsel for the defense
did not complain of any evidence introduced during the interval but said
he had objected to some testimony and counsel for both sides said they
were awaiting the judge's return and the defendant's objection to the
testimony was then presented. Held, that the bill of exceptions was defective
because it did not disclose what the illegal testimony was. In a prosecution for homicide the defense
reserved an exception because the trial court refused to admit evidence of the
magistrate who held an inquest on the body of the decedent, in the absence of
"the papers." The bill of exceptions failed to show what
"papers" it referred to and the trial court received the evidence of the magistrate except
with regard to the loss of the record of the inquest and the state admitted
the loss of that record and conceded the right of the defense to prove its
contents. Held, no error was apparent. That a defendant's challenge for cause was improperly
overruled, and he was thereby forced to the peremptory challenge of a
disqualified juror, is not error of which he can complain unless he
exhausted his peremptory challenges before a full jury was obtained. Where one, with a sedate and deliberate mind and
formed design, kills another, there is express malice, although the
design is formed immediately before the killing. Murder in the first degree can be perpetrated by
other means than those specified in Pen.Code, art. 606, and the express
malice which characterizes it may be evidenced by other external circumstances
besides lying in wait, antecedent menaces, former grudges and concocted schemes, and even
in a sudden difficulty homicide may be committed under circumstances of such enormity,
cruelty or deliberate malignity as will suffice to show that it was done with
express malice and is murder in the first degree. Evidence held to sustain conviction of first
degree murder. In a prosecution, tried in 1882, for homicide
committed in 1879, testimony of a witness for the state relating to the
homicide in question, the date of which was fully proved by other witnesses, was
competent, although the witness was unable to give the year in which the
killing occurred. A. S. CHEVALIER, filed an able brief for the
appellant. J. H. BURTS, Assistant Attorney General, for the
State. HURT, JUDGE. The appellant, Sam LEWIS, was indicted for the
murder of William FINKELSTIEN, a peddler, on the twenty-first of
October, 1879. He was tried and convicted of murder in the first degree; his
punishment being assessed at confinement in the penitentiary for life.
From this judgment and sentence he appeals and relies upon a number of
assignments of error. His first error is the action of the court in
overruling defendant's motion to quash the venire upon the ground of the
insufficiency of the return of the sheriff touching his diligence to find and
summon certain veniremen. In regard to the jurors not summoned the return of
the sheriff is as follows: "And the following named persons whose
names appear upon said venire were not summoned for the following reasons, to-wit:
F. KENELl, W. CARLES, C. H. BURNS, D. P. CROFT, John BURK and W. S. LANE,
are all out of Fayette county, and could not be found in said county although
diligent search was made for them by the sheriff of Fayette county and his
deputies; and H. C. GERDES, John FRIERSON, A. GROOS, W. DICK, August MISCHER
and N. M. COCKRELL were not found in Fayette county although diligent search was
made for them at their residences and places of business, and at any point at which
they were likely to be found by the sheriff of said
Fayette county and his deputies." Article 614, Code Criminal Procedure requires
the diligence to be stated. This return, we think, fully complies with the
Code, and, if true, great pains was taken to summon these jurors. *9 By the second assignment it is insisted that
the court erred in overruling defendant's motion for continuance. Jack LEWIS, of Colorado county, S. SMITH, of
Bastrop, and Handy HOLMAN, of Fayette, were the witnesses desired. LEWIS was
attached by the sheriff of Colorado county, and was released by the order
of John MITCHELL, Esq., on the fifteenth day of November, 1882. Defendant
in his motion states that MITCHELL was not an attorney in the case, and
that he was not authorized to release this witness LEWIS. This may be true.
The question, however, is one of diligence. LEWIS was discharged on the
fifteenth day of November, and the cause was not reached or called for trial until
the twenty-third of that month. We are not informed by defendant's motion
at what time he learned that LEWIS had been released from the
attachment. It may have been the same or the next day, leaving ample time for another
attachment to have been issued, served and the attendance of the witness
secured. Again, the evidence of said witness LEWIS is not
shown to be competent. In his motion defendant says "that he expects
to prove by said witness that affiant told witness, after the murder, * * that
he did not intentionally kill deceased, but deceased struck him over the
head with a buggy whip, and he returned the blow with no intention of
killing the deceased." That "affiant told witness," etc. When and
where did he tell the witness? To be admissible, the statement of affiant (the
defendant) must have been res gestae, and all of the facts and circumstances,
the time and place, must be stated, which are necessary to show that, in
fact, his statement was res gestae. By the next witness the defendant expected to
prove "that there existed in the county so great a prejudice against
defendant that he could not obtain a fair and impartial trial in said county; that he
is a material witness on a motion for change of venue. A sufficient answer
to this is that there was no motion made for a change of venue. If defendant
had filed his motion for that purpose, and desired witnesses to establish
his right to a change, the court no doubt would have caused proper process
to be issued, and would have given defendant time to assert his right in
regard to this motion. But, as there was no effort made to assert his right to
a change of venue, we presume the defendant abandoned this purpose. The other witness is Henry SMITH. By this
witness defendant expects to prove "that HOLMAN (a very important witness for
the State) before the jury of inquest did not swear that affiant laughed when he
saw that deceased was dying." It is not stated in the motion for
continuance that HOLMAN said anything upon this subject at all. His attention
was not called to this matter, nor does it appear (from the motion)
that the negative of what the witness swore on the trial was even so much as
hinted at in his testimony before the inquest. *10 That a witness fails to state everything
that was done and said by the parties at the time of the occurrence of the
facts to which he swears is not a contradiction. To be such, he must make a
statement in regard to the fact. If he omits a fact, his attention should be
drawn to it, or, if he is asked if what he has stated was all that was said by
the party or parties, and he answers in the affirmative, and upon the trial he
embraces other facts, in his evidence, than those related by him before
the inquest, the defendant would have the right to show this. This,
however, is not the state of the question in the case in hand. As presented to us
by the record, HOLMAN simply testified to some facts which were
omitted in his evidence before the inquest, and these not in conflict but
harmonious with his evidence there given. The court did not err in overruling the motion
for continuance. It is assigned as error that the court erred in
holding the juror ZREEMER competent. This juror was challenged
peremptorily, and the defendant did not exhaust his challenges. It is now settled by
this court that, to complain of the action of the court in erroneously holding a
juror competent, the defendant must exhaust his peremptory
challenges. We are of the opinion, however, that the juror was impartial and
competent. The juror stated that when he heard of the killing "he said the
defendant ought not to have killed the deceased, but that he had formed no opinion,
nor then had any opinion about the case." Fourth assignment is "that the court erred
in permitting Nat. HOLMAN, a witness for the State, but one who was not
present at the killing, to give his opinion of the manner in which the blow was
struck, and the relative position of the parties, when the State had
failed to show witness to be an expert in such matters." HOLMAN described
the wound minutely, and the shovel (the weapon used), and then gave his opinion
that, "if the wound inflicted on FINKELSTIEN was made with the shovel, he must
have been hit with the eye of it; no other part of the shovel could make
the same kind of a wound as was on him." This evidence, to wit, the
witness's opinion, was not competent. But was the defendant injured by it?
We think not. The wound was of that character, taken in connection with the
formation of the shovel, as to place it beyond cavil that, if inflicted with
the shovel, it must have been with that part known as the eye. This
opinion of the witness was perfectly patent, and, whether expressed or not,
the jury would have irresistibly reached the same conclusion. If the
State had been seeking to identify the weapon with which the blow was
inflicted, by this evidence, we would hesitate before sanctioning such means.
This, however, was not the case, there being an eye witness to the fact
that the blow was inflicted with the shovel. 5. "During the progress of the trial the
honorable judge absented himself from the court room, and remained outside
without notifying counsel. The counsel for State continued to examine his
witness in the absence of the court, and when counsel for the defense arose to
object to his manner of interrogating the witness, no court was present
to sustain or overrule the objection to the evidence, and during this
interval illegal and damaging evidence to the defense went to the jury."
The record informs us "that the presiding judge retired under a call of nature
for a brief minute, supposing the counsel would take notice thereof. Counsel
for defendant did not complain of any testimony introduced in his
absence, but stated that he had offered objections to some testimony, and that
counsel for both parties said they waited his return and then presented the
objection to the testimony." *11 In the first place, we are not informed of
what the illegal and damaging testimony complained of by defendant consisted.
This is fatal to the bill of exceptions. Again, the momentary absence of the
presiding judge during the examination of a witness, under the
circumstances mentioned in the record, will not of itself justify this court in
reversing the judgment. If illegal or improper evidence had been introduced by the
State, over objection of defendant, during this absence, a motion to
exclude would have resulted to his relief against such evidence. But we cannot
hold the opinion of counsel that there was illegal evidence admitted; the
facts must be set out that this court may pass upon their illegality. Notwithstanding
the very high respect in which the counsel for defendant is
held by this court, we must be permitted to say that we view this whole matter
as frivolous. Sixth assignment: "The court erred in
admitting the evidence of HOLMAN (a witness for the State) as to the murder, when
the said witness knew nothing about the date of the killing, not even being
able to give the year of the killing." The date of the killing was very
clearly proven by other witnesses. The witness HOLMAN referred to the
same homicide. That he failed to remember the year is no objection to the
competency of his evidence. 6 1/2. "The court refused to grant the
defendant time to take down the testimony." In this there was no error. 7. The court refused to give any of the charges
asked by the defendant. The proper charges requested were embraced in the
charge of the court. The other charges refused were without facts, or were upon
the weight of the evidence, and were properly refused. 7 1/2. "The court refused to admit the
evidence of T. W. SMITH, the justice of the peace who sat on the inquest held over
the body of the deceased in 1879, in the absence of the papers." What
papers? We may presume that the testimony taken before the jury of inquest was
reduced to writing. But certainly bills of exception should be more
specific. What facts did defendant propose to prove by this witness? We
know not. Were they competent and beneficial to the defendant? Here again we
need light. But the explanation of the learned judge, we think,
shows, that there is nothing whatever in this billl. We are informed by the
record that the State admitted the loss of the papers, and offered to
permit any testimony showing their contents, and that the loss was known upon
a former trial, and it was only as to the loss of the papers that the court
would not hear further testimony by SMITH. What necessity was there for
any proof of the loss of these papers by SMITH or any other witness, when
their loss was an admitted fact? 8. The court gave verbal instructions to the
jury, to wit: "that they should not cast lots in coming to a verdict." In
this there was no error. 9. "The court erred in the charge."
The bill of exceptions points out no error in the charge. However, this being a
felony, the charge of the court has been thoroughly examined, and we find that
the law applicable to the case made by the evidence was fully and clearly
given in charge to the jury. *12 10. "The court erred in refusing to
grant a new trial in the case, on the grounds set forth in the motion of defendant
therefor." In addition to some of the matters already mentioned, the
motion for new trial contained two others: 1, newly discovered evidence; 2,
that the verdict of the jury is contrary to and not supported by the evidence.
This newly discovered evidence consists of the facts set forth in the
affidavit of B. D. SHROPSHIRE, Esq., in regard to those lost
papers, already mentioned in this opinion. Neither the motion for new trial nor
the affidavit of SHROPSHIRE indicates that a material fact, beneficial to
the defendant, could be established by those papers, if found. The
motion seeks a new trial upon the ground that there is a probability of finding
those papers. Suppose they should be found, how would defendant be
benefitted by them? To authorize a new trial upon this ground, this must be shown
in such clear light as to place it beyond doubt. To be explicit: 1. The
newly discovered evidence must be made to appear material. 2. Not in conflict
to such extent as to render its truth improbable. 3. It must be beneficial,
exculpatory, in its nature. Appellant being convicted of murder of the first
degree, it is urgently insisted by his learned counsel that the
evidence fails to support the verdict finding him guilty of that offense; and
it is very plausibly argued by counsel that, as there was no proof that
defendant took the life of deceased by starving, torture, etc., or by lying
in wait, or that he had threatened to kill him, or entertained grudges
against him, or had concocted schemes to do him bodily harm, that, therefore,
there was no proof of express malice. In this we cannot agree with
counsel for defendant. Express malice is where one with a sedate and
deliberate mind and formed design kills another; and this formed design is
evidenced, proven, by external circumstances discovering that inward
intention; and this formed design, inward intention, is discovered, made
manifest, by such external circumstances as taking life by starving,
torture, etc., or by lying in wait, or antecedent menaces, former grudges and
concocted schemes to do bodily harm. These are illustrations of the
external circumstances which discover the formed design, the inward
intention, but they do not exhaust the whole field of facts and circumstances by
which the formed design, the inward intention, may be discovered. If it is shown by any fact or circumstances--is
made manifest--that one with a sedate and deliberate mind and formed design,
kills another, the killing would be upon express malice, and these external
circumstances discovering the formed design may transpire at the time of
the killing, as well as before. "For though the killing be upon a
sudden difficulty, it may be attended with such circumstances of enormity,
cruelty, deliberate malignity, cool calculating compassings, or even calm
demeanor and absence of passion, as will be sufficient evidence to establish the
inference that the killing was the result of a sedate, deliberate mind and
formed design to take life or do some great bodily harm. Acts and
admissions or other language of the prisoner, even after the mortal stroke or
killing, may often be pertinent evidence as tending to show express malice at
the time of the killing." The last two rules apply with great force to the
facts in this case. *13 (The Reporters will give the statement of
facts, charge of the court, and the refused charge.) We are of the opinion that the evidence supports
the verdict. We have given every question raised by the record and brief of
counsel our most careful consideration, such consideration as the gravity
of the case demands, and have not discovered an error in the record such
as will warrant a reversal of the judgment. The judgment is affirmed. Affirmed. ============================== Tex.Ct.App. 1883. POTTS v. STATE. 14 S.W. 456, 26 Tex.App. 66 Appeal from district court, BASTROP county; L.
W. MOORE, Judge. Haywood POTTS was indicted for the theft of a
gun from one H. PERKINS. The gun was of the value of $45, and was the
property of one W. W. KNOWLES, for whom said PERKINS was holding it. PERKINS
testified that on the night of the theft defendant came to his (PERKINS') house, in
a wagon, peddling buffalo meat; that he stayed all night, sleeping with
two of the laborers on the place in the room where the gun was; that he
left the place soon after breakfast the next morning; and that the gun was
not missed until some time afterwards. SMITHSON, the constable who arrested
defendant, testified at the preliminary examination. After the preliminary
examination, and before the trial, SMITHSON died and the testimony taken by
the examining magistrate was burned. PERKINS, who heard the testimony of
SMITHSON, was allowed to reproduce it. He stated, in that behalf, that
SMITHSON testified that he sent word to defendant that he had heard that
defendant had a gun; that he (SMITHSON) wanted to buy a gun of that kind, and
requested defendant to bring it to him for examination; that defendant
sent it by one STANLEY, but SMITHSON refused to buy it, alleging that the
price was too high; that he told STANLEY to leave it at a certain store, and
to tell defendant to come to town, as he thought that they could make a
trade; that STANLEY left the gun as requested, and a few days afterwards
defendant came to town, and offered to sell the gun to SMITHSON, stating
that it was his (defendant's) gun; that SMITHSON then arrested defendant. The clerk
of the district court testified that he saw in his office the papers
comprising the proceedings of the examining court in defendant's case, but had
not seen them since the court-house was burned. The examining magistrate
testified that he reduced to writing all the testimony given on the
preliminary examination, and turned it over to the clerk of the district
court. Defendant offered no evidence, but moved for a new trial on the
ground of newly-discovered evidence. The oral reproduction of testimony given on the
preliminary examination in a criminal case by a witness, since deceased, is
properly allowed, where the examining magistrate testifies that he reduced
all the testimony to writing, and returned it to the district clerk, and the
district clerk testifies that he saw in his office the papers returned by the
examining magistrate, that his office was afterwards burned with a great
many papers and records, and that he never saw the papers in question again. Where a witness, since deceased, testified
before an examining court and a witness offered to prove his testimony so given,
the record of which had been destroyed by fire, consuming other records
deposited in the court-house, was unable to repeat the language
of the deceased witness, he might testify to the substance thereof. On an indictment for theft of a gun, the
testimony of a deceased witness given on the preliminary examination was
reproduced orally. Such testimony was to the effect that defendant, through a
third person, offered to sell the gun to the deceased witness, who declined to
buy, but sent word to defendant to come to see him; that defendant
came, said the gun was his, and offered to sell it to deceased; that deceased,
who was a constable, thereupon arrested him. The affidavit in support
of a motion for a new trial on the ground of newly- discovered evidence
alleged that affiant, a deputy sheriff, was present at the arrest; that nothing
was said about the gun before the arrest; and that defendant did not
claim the gun. Held, that a new trial should have been granted. J. H. BURTS, Asst. Atty. Gen., for the State. WHITE, P. J. As a predicate for the reproduction of his
testimony it was proven that SMITHSON, the main prosecuting witness who
testified at the examining trial, was dead, and also that the testimony taken in
writing at said trial, including SMITHSON's, was in all probability
destroyed in the fire which burnt up the BASTROP court-house. No error was
committed in permitting the witnesses PERKINS and HEARN, who had heard
SMITHSON testify at said trial, to reproduce the deceased witness' testimony;
and, whatever the former rule on the subject may have been, it is now well
settled that, to reproduce testimony given at a former trial by a witness
who has since died, the person called to prove it may state its
substance, if unable to repeat its precise language. As part of SMITHSON's testimony,--what
transpired between himself and STANLEY, who brought the gun to him for
sale,--was competent, and necessary to elucidate and explain the subsequent
connection of both SMITHSON and defendant with the gun, which was left by
STANLEY in a store-house at Elgin, at the instance of SMITHSON, to await
defendant's coming, we cannot see that the court erred in admitting the testimony. The
witnesses who reproduced SMITHSON's testimony stated that SMITHSON had
sworn on the examining trial that when defendant came to Elgin he claimed the
gun as his property, and that SMITHSON then arrested him for theft of the
gun. This portion of the testimony, with regard to defendant's claim of
the gun, was the most damaging evidence against him. In his motion for
a new trial, defendant set up newly-discovered evidence, to-wit, the
evidence of one PINKARD, a deputy-sheriff of the county, who was present
when the arrest took place, and who, in his affidavit, stated, in substance,
that nothing was said by defendant or SMITHSON about the gun before
the arrest, and that defendant did not claim the gun before or after his
arrest. Looking to the circumstances attending the case; the fact that
SMITHSON was dead; that several years had elapsed since his testimony
was given at the examining trial; that the proposed new testimony was that
of a witness who was himself present at the time of the occurrence, and who
from his official position would likely remember what criminative facts
transpired; that the testimony as given was from parties who were not present,
and who were relying upon their recollection of what another said about
it,--taking, we say, all these facts into consideration, we think the court
should have granted the new trial in order that defendant might have the
opportunity to avail himself of such newly- discovered evidence. The judgment is
reversed, and the cause remanded. ================= Tex.Ct.App. 1883. D. CARTWRIGHT AND J. NASH v. THE STATE. 14 Tex.App. 486, 1883 WL 8943 (Tex.Ct.App.) APPEAL from the District Court of BASTROP. Tried
below before the Hon. L. W. MOORE. *1 At the spring term, 1881, of the District
Court of BASTROP county the grand jury returned an indictment charging that
the appellants, Dave CARTWRIGHT and John NASH, did, on the preceding
twelfth day of February, kill and murder one B. F. DAVIS, by shooting him
with pistols, etc. The case came to trial in May, 1883, when the appellants
were found guilty of murder in the second degree, and a term of six years in
the penitentiary was assessed and adjudged against each of them. The affray which resulted in the homicide took
place four or five miles from the town of McDade, on the road leading from
there to the town of BASTROP. William PARIS, the first witness for the State,
testified that on the twelfth day of February, 1881, he saw DAVIS, the
deceased, about half a mile from McDade on the road towards BASTROP. Witness
was driving a four-mule wagon, and was riding the left-hand near mule of
the team. Deceased got into the wagon, and seated himself about midway of
it, with his right side towards the witness. He had a breech loading
double barreled shot gun on his lap, or in his hands, with the muzzle pointing
towards McDade; and in this manner he rode about three miles on witness's
wagon. While going along, the deceased showed his cartridge belt and several
cartridges to the witness. The cartridge shells were loaded. Witness, with
his wagon and the deceased, had gone about the distance stated, and had got
within about one hundred yards of James TOWNSEND's house, when the defendants,
Dave CARTWRIGHT and John NASH, rode up in a gallop from the direction of
McDade. CARTWRIGHT rode up on the right hand side of the wagon; NASH in rear of it.
CARTWRIGHT said "Hold up there;" he had a pistol in
his hand. Witness then looked around to stop his mules, and the shooting commenced.
Looking around, the witness saw CARTWRIGHT shoot once. There had been shots
before he looked around and saw CARTWRIGHT shoot. Before the shooting began the
witness had observed KELTON (a witness for the defense) working at a chimney
on the east end of TOWNSEND's house. Several shots were fired
behind the witness. He did not see NASH until after the firing had ceased. NASH
then had a pistol in his hand. Witness thought there were from three to
five shots fired, probably more. Two of them struck the end of the wagon
bed; one went through the witness's clothing, and another hit one of his
mules, entering the hind part of its leg and coming out in front. Witness saw
blood on the clothes of the deceased, but did not see his wounds. Cross-examined, the witness stated that after
the firing ceased CARTWRIGHT told him to take the gun from the deceased, who
was rather bent over in the wagon. Witness took the gun from the deceased,
and laid it on the ground. Deceased was still alive, but said nothing. The
witness distinguished no difference in the sounds of the different shots;
but on hearing read his sworn statement made at the inquest held the day
after the killing, the witness adhered to it in preference to his
present recollection. In that statement the witness had said that he did not
know whether the deceased fired any of the shots or not; that he did not
see the deceased shoot, "but there were sounds that seemed different shots
from the pistols." *2 Aleck WHITE, for the State, testified that he
saw the deceased in PARIS's wagon, on the McDade road, about a mile from
James TOWNSEND's, between two and three o'clock in the afternoon. When witness
got in about a quarter of a mile of TOWNSEND's, he was passed by the two
defendants, who were riding in a slow lope towards the town of BASTROP. Witness
saw them when they were a short distance behind PARIS's wagon. The witness
heard three or four shots, but was so frightened that he did not see who
fired them. Doctor HOLT, for the State, testified that he
examined the body of the deceased a day or two after the homicide, and
found in it two holes, which he took to be bullet holes made by a revolver or
six shooter. One of the bullets entered just below the right shoulder
blade and came out through the right nipple. The other bullet entered on the
right of the back bone, three or four inches below the one first mentioned,
and came out below the right nipple. Tom BISHOP, for the State, testified that he was
constable of the McDade precinct at the time the deceased was killed. On
the day that event occurred, the witness was requested by Horace
NASH to execute a writ of sequestration which, at his instance, was being
issued by the justice of the peace, for the seizure of the gun of B. F.
DAVIS, the deceased. Witness replied that he was too unwell to execute the
writ, and asked the defendant CARTWRIGHT to execute it. CARTWRIGHT had been in
the habit of executing process for the witness when the latter was
unable to attend to business. W. H. COULSON, Sr., the justice of the peace,
testified, for the defense, that on the day of the homicide he, at the
instance of Horace NASH, issued a writ of sequestration directing the seizure of
the gun which DAVIS, the deceased, then had. While the writ of
sequestration was being prepared, Horace NASH and the defendant CARTWRIGHT were
present in the witness's office. When the writ was issued the witness
laid it on the table, and either NASH or CARTWRIGHT took it up from the
table, and they went off together. Witness supposed that it was
CARTWRIGHT who picked up the writ from the table. CARTWRIGHT had frequently
executed process issued by the witness, and attended as an officer upon the
witness's court. Witness could not say how many writs CARTWRIGHT had executed,
nor how many arrests he had made, but knew that he had executed several
writs, and that the people of McDade, as well as witness, regarded him as an
officer. Witness had never specially deputized CARTWRIGHT. Horace NASH, for the defense, testified that
DAVIS, the deceased, on the day he was killed, pledged his gun to witness for a
loan of sixty dollars, but took the gun away from where it had been left,
and refused either to give it up to witness or to repay him the money. Witness
went to BISHOP, the constable, and asked him to execute a writ of
sequestration, which was being prepared for the seizure of the gun. The
constable said he was too sick to attend to business, and asked witness to see the
defendant CARTWRIGHT. The constable and witness saw CARTWRIGHT, and the
latter went with witness to the office of COULSON, the justice of the peace,
when the writ of sequestration was issued by COULSON for the gun.
CARTWRIGHT took the writ, and as he was starting off with it, he summoned
the defendant John NASH to go with him, and they two went off on their
horses together. The witness at that time regarded CARTWRIGHT as an officer. *3 On his cross-examination, the witness stated
that he demanded of the deceased the payment of the money, or, else, the
possession of the gun which he had pledged to witness as security for the
money. Witness told the deceased that if he did not deliver up the gun
he would kill him, and at that time the witness held in his hand a gun of
the defendant John NASH, but he made no attempt to use it. Neither of the
defendants were present when witness told the deceased he would kill him if
he did not deliver up the gun. When witness and the deceased separated,
the latter went to the hotel and got the gun, and the former went to the
justice of the peace to get a writ of sequestration for the gun. The gun had
never been put absolutely in witness's possession, but it was understood
between him and the deceased that it should remain at the hotel and stand
good for the money witness had loaned the deceased. John NASH, one of the
defendants, is witness's nephew. W. R. KELTON, for the defense, testified that he
was standing on a scaffold about breast high, and was engaged in putting up
a chimney at the east end of TOWNSEND's house, which was some fifty yards
from where the shooting took place. Witness first heard one of the parties on
horseback say either "hold up" or "do not shoot." Which of
these expressions was used he could not remember. At the same moment he saw the
deceased, in PARIS's wagon, with a shot gun elevated, and saw him shoot twice. The
first shot was directed towards the man in rear of the wagon, and the
second towards the man on the right of the wagon. Then the witness heard other
shots, and judged them to be from pistols, as these reports were different
from those of the two shots first fired. Witness was certain that the
deceased fired two shots first, and that no shots were fired before them. From
where the witness stood upon the scaffold he could see the deceased plainly;
and he saw PARIS take the gun out of the wagon after the firing. Witness
immediately went to where the firing took place. He examined the gun, but did
not take the shells out of it. He saw that the shells had been freshly
exploded or snapped. In all, there must have been five, six, or seven shots
fired. Witness, however, saw no other person shoot besides the deceased. J. H. TANNER, for the defense, testified that
his attention was first called by hearing two shots, which, at the moment, he
supposed were fired by an old negro who was in the habit of hunting with a
shot gun in the neighborhood. Directly, however, other shots were fired, and
witness immediately went down to where they were fired. The deceased was
humped over in the wagon. Witness saw Mr. PARIS take up a shot gun as witness
approached the wagon. Witness took hold of the gun. It appeared to have been
freshly fired off. Witness examined it, and saw that the cartridges had
been fired or snapped. Defendant CARTWRIGHT told the witness not to let
anyone take the cartridges out of the gun. Some time in the course of the
next day the witness and several others examined the gun, and in it found
two empty shells, one in each barrel. Witness cautioned persons not to
handle the gun, and at night he put it in a room, and between two bed-ticks,
and he was confident that no one handled it, except in his presence, until
the two empty shells were taken out of it. The reports of the two shots
first fired resembled those of a shot gun, as they were different from those
subsequently fired. On his cross-examination, the witness said he could not
see who did the firing, on account of a room on the end of the gallery
obstructing his view. *4 James TOWNSEND testified that he was not at
his home when the deceased was killed, but returned there shortly after
that occurrence. Witness asked defendant NASH if he had suffered any damage in
the affray, and NASH replied ""Only this," pointing to the
sleeve of his coat, in which the witness then saw there were a half dozen or more holes, as if
made by shot. In rebuttal, the State examined W. G. MILLER,
who testified that he was county surveyor of BASTROP county, and, about
two years ago, had received a letter from the deceased's father, requesting
him to bring his chain and compass to TOWNSEND's, where the deceased was
killed. The witness went, and, on the grounds, found not only the writer of the
letter, but the then prosecuting attorney and Mr. William PARIS. Mr.
PARIS took the witness to the spot where he said the wagon was standing
when the deceased was shot. Witness measured the distance from that spot to
the chimney at the east end of TOWNSEND's house, and found it to be one
hundred and seventy-two varas on a direct line. There were no trees intervening
directly on the line, but there were ten or twelve trees at various
distances from each other and from three to seven feet distant from the direct
line. Although one committing a homicide by his own
wrongful acts produced the necessity for killing in order to save his own
life, it does not follow that the homicide is inexcusable. Consideration must
be given to the wrongful acts by which the right of self-defense is
claimed to be abridged or forfeited. The right of self-defense is not impaired by
mere preparation for the perpetration of a wrongful act, unaccompanied by
any demonstration, verbal or otherwise, indicative of the wrongful
purpose. G. W. JONES and J. D. SAYERS, for the
appellants, filed an able brief and argument, reviewing the evidence, the charge of
the court below, and the authorities on which they relied for a reversal. J. H. BURTS, Assistant Attorney General, for the
State: 1. The first assignment of error is not tenable.
The testimony of W. H. COULSON, to the effect that he supposed that
appellant CARTWRIGHT was a deputy sheriff, was irrelevant, and not
admissible. CARTWRIGHT knew, himself, that he was not a deputy sheriff, and
if he took extraordinary process to serve, without being an officer, he
did so at his peril; and if appellant NASH accompanied him to serve such
process, he did so at his peril. The testimony offered and excluded did
not tend to show that either of the appellants believed CARTWRIGHT to be an
officer clothed with authority to execute the process, and there was
nothing in the testimony to make it admissible. (Staples v. The State,
decided at this term, and authorities therein cited, 14 Tex.App. 136.) 2. The second assignment of error, viz,
"The court erred in not charging the jury the law of self-defense," is not
tenable, and is not sustained by the record. The court states to the jury, viz:
"Upon self-defense or justifiable homicide, you are charged that any party who is
so attacked as reasonably to produce a fear or expectation of death or some
serious bodily harm, the party so attacked is justifiable in taking the
life of the party so attacking." This was all that the law would
justify the court, on the facts, in charging on this point. And this court will
note that the charge was not excepted to at the time it was given, nor were
additional charges asked by appellant. And it was neither made a ground for
new trial, nor was it calculated to injure the rights of appellants. *5 3. The third assignment of error is not
tenable, viz: That the court erred in the following portion of its charge, to
wit: "You are charged that any attempt to execute any writ or process whereby
property is to be seized by persons not authorized to execute such
process is trespass. There is no evidence before you that Dave CARTWRIGHT is an
officer authorized to execute such process. A constable cannot confer such
authority upon any person, nor can any magistrate, except in the mode pointed
out by law." This charge was not excepted to when given. But it is correct
throughout. There is but one mode of conferring authority on a private person
to execute process from a magistrate's court, and that must be upon a
person of good character in an emergency. If executed by an unauthorized person
it is a trespass, as charged by the court. There was no evidence before the jury that
CARTWRIGHT was an officer authorized to execute such process, and it was
proper for the court to tell them so. "It is the province of the judge
to determine when there is or is not any evidence as to a certain fact." Our Supreme court has always held that where
there was no evidence to a given point, the court might so say to the jury.
These are civil cases, but there is no reason why the rule should not apply in criminal
cases, as was held in BURRELL v. The State. But the charge was not excepted to when given,
and being objected to for the first time on the motion for a new trial, and
not being calculated to injure the rights of appellants, it will not be revised
by this court; and thus this assignment is disposed of. 4. The fourth assignment of error is not
tenable, which is that the court erred in the following portion of its charge:
"If you believe from the evidence that the defendant Dave CARTWRIGHT,
accompanied by the defendant John NASH, if acting with him, were armed, and
did undertake to seize, by virtue of a writ of sequestration, a gun in the possession
of B. F. DAVIS, then B. F. DAVIS had the right to resist such
seizure, and using force enough to prevent it; and if you further believe
these defendants, being armed, did by their conduct induce the said B.
F. DAVIS to believe his property was to be taken, or to kill him, then
the said B. F. DAVIS would have been justifiable in taking the life of the
defendants; and if you believe these defendants were placed under the
necessity of taking the life of said B. F. DAVIS under such circumstances as
these, and did so kill him, then they are not justifiable, but would be
guilty of murder." This paragraph of the charge, taken in
connection with other parts of the charge, and in view of the evidence, is correct.
The parties, without any legal authority, with drawn six shooters,
assailed deceased on the highway, for the purpose of forcibly taking from him his
property, which, according to the testimony of Horace NASH, was rightfully
in his possession, and ordered him to ""hold up" for
that purpose. They were not justified in this. They were trespassers. They were wrongdoers.
Deceased had the right to defend his property and his person to the extent of slaying his
pursuing assailants, and it was proper for the court so to instruct the jury. The remaining
portion of this paragraph of the charge correctly states the rule, where the accused, by
his or their own wrong, bring about the necessity for taking life. *6 5. The fifth assignment of error is not well
taken; which is that the court erred in the following portions of its
charge: "If you believe these defendants, acting together, without authority
of law, to execute a writ of sequestration, were intending to seize the
property of B. F. DAVIS in the execution of said writ, and if you further believe,
though armed, they made no demonstration thereof, nor performed any act
to indicate they intended to use any arms to secure possession of the
property, nor to do any bodily harm to the possessor, then, if the said B. F. DAVIS,
in resisting such seizure, used more force than was necessary, and resorted
to a greater violence than necessary, and by such violence and use of a
deadly weapon threatened the life of the defendants, or serious bodily harm,
the defendants under such circumstances would not be justifiable in taking
the life of B. F. DAVIS, but would be guilty of manslaughter." This paragraph of the charge, if not critically
correct, in view of the evidence, inured to the benefit of appellants,
and of it they ought not to be heard to complain; and the cause on that
account should not be reversed. The charge in this respect, however, was in
accordance with law. But, again, the charge was not excepted to when
given, and was not calculated to injure the rights of appellants. 6. The sixth assignment of error is untenable.
It is: "The testimony does not support the verdict in this: 1. There is no
evidence whatever that the defendants or either of them ever attempted to
seize the gun or to execute the writ of sequestration. 2. There is no
evidence going to show that the defendants or either of them made an assault, or
indicated an intention to assault B. F. DAVIS before the said DAVIS fired
upon them with his gun." The record contradicts this assignment in both
of the stated particulars. It was proved that appellants, without authority,
took the writ in McDade, and followed deceased with the intention of seizing
the gun; that they pursued and overtook deceased on the highway, and with
drawn pistols galloped or loped up to him and commanded him to "hold
up;" which was of itself an assault with deadly weapons. 7. The seventh assignment, which is "the
court erred in overruling defendants' motion for a new trial," is not
tenable. All points raised by this assignment have been discussed and disposed
of. This motion was correctly overruled. 8. The first special assignment made for
appellant NASH is untenable; which is: "There is no evidence going to show
that he knew his co-defendant did not have the authority to summon him to assist
in the execution of the writ of sequestration." It was his duty to know
that his co-defendant had the authority to execute the writ. But he has no
cause for complaint, for the court fairly submitted to the jury the issue as
to whether or not he knew that CARTWRIGHT had authority to execute the
writ, and the question as to whether or not he engaged in the difficulty.
There was evidence that he had his pistol drawn when first noticed in the
difficulty. HURT, JUDGE. *7 CARTWRIGHT and NASH were convicted of the
murder of B. F. DAVIS. The verdict was for murder of the second degree, the
punishment being fixed at six years confinement in the penitentiary. It
being the duty of the court to charge the law upon every phase of the case
presented by the evidence, and to abstain from charging upon theories not
supported by evidence, the appellants insist that this rule has been
violated to their injury, and ask a reversal of the case because of this error. Under the facts, or the different phases of the
facts, of this case, is the charge obnoxious to this objection? A detailed
account of the facts immediately attending the homicide is, by W. R.
KELTON and J. H. TANNER, given as follows: By W. R. KELTON (a witness for the defendants):
Was standing upon a scaffold, about breast high, engaged in putting
up a chimney on the east end of TOWNSEND's house, about fifty yards from
where the shooting of the deceased took place. I first heard one of the
parties on horseback say, either "hold up" or "do not
shoot," which I do not remember. Just at that moment I saw the deceased on the wagon driven by
PARIS, with a shot gun elevated, and saw him shoot twice, first in the
direction of the man to the rear of the wagon and then in the direction of
the man on the right of the wagon; then I heard other firing from what I
judged to be pistols, as the reports were different from the two shots first
fired; am sure the deceased fired two shots first and that there were no
shots fired before the deceased fired; could see the deceased plainly from where
I stood upon the scaffold; saw PARIS as he took the gun out of the wagon
after the firing took place; examined the gun, but did not take the hulls
out, but saw they had been snapped or exploded freshly; there must have
been five or six or seven shots altogether fired; saw nobody but the deceased
shoot. By J. H. TANNER (a witness for defendants): Was
sitting on the gallery when the shooting in which DAVIS was killed occurred;
my attention was first called by hearing two shots fired. I first
supposed that they were from the shot gun of an old negro, who was in the habit
of hunting near, but directly other shots were fired. I immediately went down
to where the firing occurred; the deceased was humped over in the
wagon; saw PARIS take a shot gun up as I went toward the wagon; took hold of
it and it appeared to have been freshly fired; examined the gun and saw
that the cartridges had been fired or snapped; CARTWRIGHT told me not to let
anyone take the cartridges out of the gun. Some time during the next day
several of us examined the gun and found two empty shells in the gun, when I
put it in a room at night and between two bed ticks, and am confident that no
one handled it, except in my presence, until the two empty shells were taken
out. The sounds of the two shots fired first when the killing took place
resembled those of a shot gun, as they were different from those afterwards
fired; could not see who did the firing, as there was a room on the east end
of the gallery, and between the place where the firing occurred. *8 The facts relied upon by the State are, in
substance, these: CARTWRIGHT and NASH, neither being an officer, left McDade
with a writ of sequestration against the deceased for a shot gun. The
deceased, B. F. DAVIS, had left McDade with said gun, going in the direction of
BASTROP, and within a half mile of McDade he overtook the witness PARIS,
who was driving a wagon drawn by four mules. DAVIS got in the wagon, and when
they had traveled about three miles, and were within about one hundred
yards of the house of James TOWNSEND, CARTWRIGHT and NASH rode up from the
direction of McDade, in a gallop. CARTWRIGHT came up on the right hand
side of the wagon; NASH was to the rear of the wagon. CARTWRIGHT said,
"hold up there." CARTWRIGHT had a pistol in his hand. PARIS then looked around to
stop his mules, and the shooting commenced. Looking back he saw
CARTWRIGHT shoot once. There had been shots fired before he looked around; * * *
several shots were fired from behind his back. Witness PARIS did not see
NASH until the shooting was over. NASH then had a pistol in his hand.
Witness thinks there were from three to five shots fired-- probably more. Two
of the shots hit the end of the wagon bed, one went through his clothing,
and another hit one of the mules. DAVIS was killed in this affray, being
shot twice in the body. The witness PARIS, upon being cross-examined,
swore that "he did not distinguish any difference in the sounds of the
different shots;" but his evidence taken before the examining court being
read to him, in which it appeared that he swore "that there were
sounds that seemed different shots from the pistol," he stated that he would
adhere to what he said in his statement made before the examining court, as it
was the next day after the killing, when the facts were fresh in his mind,
and his recollection was better than now. This statement, we think, will suffice to
present the main facts in the case, as well as the issues to be passed upon by
the jury. After charging the law applicable to murder of
both degrees, the learned judge below, upon the issue of justifiable
homicide, submitted to the jury these instructions: "Upon self-defense or justifiable homicide,
you are charged that any party who is so attacked as to reasonably produce a
fear or expectation of death or serious bodily harm, the party so attacked is
justifiable in taking the life of the party so attacking. In this connection, you are further charged that
whenever a party has produced by his own wrong acts any necessity to
take human life in order to preserve his own life, he can not be excused or
justified. You are charged that any attempt to execute any
writ or process whereby property is to be seized, by persons not
authorized to execute such process, is trespass. If you believe from the evidence that the
defendant Dave CARTWRIGHT, accompanied by the defendant John NASH, if
acting with him, were armed, and did undertake to seize, by virtue of a writ of
sequestration, a gun in the possession of B. F. DAVIS, then B. F. DAVIS had
the right to resist such seizure, and using force enough to prevent it.
And if you further believe these defendants, being armed, did by their
conduct induce the said B. F. DAVIS to believe that his property was to be
taken, or to kill him, then the said B. F. DAVIS would have been justifiable in
taking the life of the defendants. And if you believe these defendants
were placed under the necessity of taking the life of said B. F. DAVIS
under such circumstances as these, and did so kill him, then they are not
justifiable, but would be guilty of murder. *9 If you believe these defendants, acting
together without authority of law to execute a writ of sequestration, were
intending to seize the property of B. F. DAVIS in the execution of said writ, and
if you further believe, though armed, they made no demonstration
thereof, nor performed any act to indicate they intended to use any arms to secure
possession of the property, nor to do any bodily harm to the possessor,
then, if the said B. F. DAVIS, in resisting such seizure, used more force than
was necessary and resorted to a greater violence than necessary, and by
such violence and use of a deadly weapon threatened the life of the
defendants, or serious bodily harm, the defendants, under such circumstances, would
not be justifiable in taking the life of the said B. F. DAVIS, but would be
guilty of manslaughter. If you believe that Dave CARTWRIGHT did attempt
to seize the property of B. F. DAVIS under a writ of sequestration, and if
you believe John NASH was present, and honestly believe said CARTWRIGHT
had authority to execute said process, and if in the proper execution thereof
the said NASH's life or that of CARTWRIGHT became reasonably threatened, or
some serious bodily harm to either, did shoot at said B. F. DAVIS to avert
and prevent such threatened danger to himself or to Dave CARTWRIGHT, or if
you believe the said NASH was present, yet if he did not engage therein, you
will acquit him." The first charge cited enunciates a proposition
to which we cannot assent. This is the proposition: That whenever a party
has produced by his own wrong acts any necessity to take human life in order
to preserve his own life, he cannot be excused or justified. What character of wrong acts must produce the
necessity to take life? Suppose the wrong acts were not calculated to
produce the necessity, but did have this effect? Again, suppose the wrong acts
were not intended to "produce the necessity" by the
wrong-doer? Would the party guilty of the "wrong acts" be guilty of culpable
homicide, who, to save his own life, takes the life of another under the supposed
cases? Just here it is necessary for us to consider the
nature or quality of the act, the doing of which will so far abridge
one's right of self-defense that if he kill another, although to save himself
from death or great bodily harm, he will yet be guilty of a felonious
homicide in some of its degrees. It would be quite difficult to lay down a
general rule by which all wrongful acts could be tested and adjudged sufficient or
not sufficient to deprive one of the complete right of self-defense. This
we will not attempt, but will at present confine ourselves to the
conclusions reached by our examinations of quite a number of cases. From
these cases we conclude that the doing of the following acts is held so far
to abridge a man's right of defense that if he therefore kill another he
cannot be acquitted of all crime: 1. Using provoking language or resorting to any
other device in order to get another to commence an assault so as to have a
pretext for taking his life, or to have a pretext for inflicting on him
bodily harm. *10 2. Provoking another for the purpose of
bringing him into a quarrel, so that an affray be caused. (SELFRIDGE's case, H.
& T. on Self-Defense, p. 24.) But in SELFRIDGE's case, though this
proposition is stated generally, it is most clearly stated that no words nor
libelous publications, however aggravating, will deprive one of the right of
defense if in consequence of the same he is attacked. 3. Agreeing with another to fight him with
deadly weapons. 5. Going to the place where another is, with a
deadly weapon, for the purpose of provoking a difficulty, or with the
intent of having an affray. The doing of the acts contained in the former
illustrations will deprive the party of the right of a complete or full
defense. There is, however, another very important
question presented in the fifth proposition. Suppose that a person should go
armed to the place where another is, intending to provoke a difficulty,
but says nor does anything to the other at all, or says nor does anything to
the other tending to show that his purpose was to provoke him to a
difficulty. Will the intent with which he went, though nothing said or done by
him was intended or calculated to provoke the other, deprive him of the right
of self-defense? By consulting the cases we will find that there was
some act or word done or said tending to provoke the other. Let us take the NEELEY case. CASSADY, the party
killed, and NEELEY, lived on adjoining farms, the former with his mother. The
parties were not on friendly terms. The fences around CASSADY's farm
were bad. NEELEY's stock broke through occasionally and were injured by
dogs or otherwise. On the morning of the day of the homicide, NEELEY,
believing that his hogs were being injured by dogs, went with his gun to the
field where some children belonging to the CASSADY family were, and shot
the dogs. After this and late in the afternoon, hogs were again heard in the
field, apparently being worried by dogs. NEELEY hurried there with his
gun, and pursued the sister of CASSADY and the children through the field in
the direction of the house. On their return home, upon telling their story,
CASSADY, with his mother and sister, left the house and went down to the
field, having with him a small rifle. NEELEY in the meantime had left the field
and gone in an opposite direction from the other parties, perhaps a
distance of sixty or seventy rods. The other parties were passing along a
path inside of the farm. At this time, some of the witnesses say that a shot
was fired in the field, while others heard nothing of it. NEELEY, either
because he heard a shot or saw CASSADY and his mother and sister, or for
some other cause not developed, turned and walked back to where they
were. When within a few feet of them, and after a few words had passed
between them, the prisoner shot and killed CASSADY. *11 According to the testimony of some of the
witnesses, who were some distance off, there was first heard the sharp
crack of a rifle, then, instantly, the hoarser sound of a shot gun, and
then, almost as quick, a third shot like the second. NEELEY fired a small
double barreled shot gun; and the third shot was at a dog, according to
some of the witnesses, and, according to others, at Mrs. CASSADY. The theory
of the defense was justifiable homicide. Under this state of facts, the court charged the
jury that "If the jury believed, from the evidence, that the defendant
brought on the difficulty, by voluntarily returning to the vicinity of the
deceased with a deadly weapon, for the purpose of provoking a
difficulty, his plea of self-defense would be of no avail, and in that case it would
make no difference who fired the first shot." Under the surrounding
facts of this case, this charge was correct. NEELEY had shot the dog; had chased,
but a short time before the killing, with a gun, CASSADY's sister and the
children from the field; and when he approached them the last time, he did
not walk in an ordinary gait, but "approached rapidly." These acts,
leaving out of the case what was said in the words which passed between him and
CASSADY just before the killing, were not only intended, but were evidently
calculated to provoke a difficulty; and NEELEY could but have known that
an affray would be the result when he rapidly returned with his gun to
where these folks were. BENHAM's case was as follows: SHEPARD, the
deceased, was at the creek, loading sand. BENHAM came up on the opposite
side with a gun, and commenced talking about cattle. He said cattle were
troubling him, and if they continued he would dog them. SHEPARD told him to
dog them as much as he pleased, but not to cross the creek and drive
them off with a horse. BENHAM told him that he, SHEPARD, had shot cattle, and
now it was his turn. SHEPARD told him he had shot no cattle, and if he told
him so again he would whip him. BENHAM repeated that he had shot cattle,
and he, BENHAM would shoot too; and SHEPARD started across the creek
towards him. As he was almost across the creek BENHAM met him with a gun, and
pointed it at his, SHEPARD's breast. SHEPARD sprang out of the water, took
hold of the gun to push it down, and it was discharged into his thigh. This
statement is that which was relied upon for conviction. In commenting upon the case, Judge DILLON makes
this remark, bearing upon the question in hand: "Nor can the
defendant get the benefit of the plea of self- defense if he sought the deceased with a
view to provoke a difficulty, or to bring on a quarrel;" and he cites
NEELEY's case in support. Here again we find that there was also something
else besides going to the place where the person was, with a deadly
weapon, for the purpose of provoking a difficulty. BENHAM evidently desired
a difficulty, and did that which was calculated to produce one. Hence his
acts, coupled with what he said to SHEPARD, were very properly held to be
such provocation as would, when forced to save his life, defeat his right
to a perfect defense to the homicide committed under such circumstances. But
NEELEY's case furnishes no support to the latter part of Judge DILLON's
proposition, to wit: "or to bring on a quarrel." This proposition is in
direct conflict with SELFRIDGE's case, and if it has any support from any source
we have not been able to find it. As stated, we do not believe it sound.
We are of the opinion that Judge DILLON had reference to the principle
enunciated in our first proposition, namely, "using provoking
language," or resorting to any other device, in order to get another to commence an
assault so as to have a pretext for taking his life. This principle we
think sound and just. He who resorts to such means, or to any means, to
provoke a difficulty, with a view to take the life of his victim, is not only
guilty of murder, but murder of the first degree. *12 Can this be said of a person who merely goes
to another with intent to provoke a quarrel? We think not, unless the
ultimate object or intent is to take the life of the party, or commit a
felonious assault in some of its grades. In SELFRIDGE's case it was held that:
"No words spoken, or libelous publications, however aggravating, will
compromit his complete right of defense." This should be modified; for we
have seen that if the words were spoken with the intent to provoke an assault for
the purpose of having a pretext for taking his life, he would be guilty
of murder. There is a vast difference between this proposition and that
stated by Judge DILLON, to wit, ""to bring on a quarrel." While
we might cite a hundred cases bearing upon this subject, but little could be learned of
value so long as the principle which underlies the whole question is not
correctly understood. What then is the principle? In BROOM's Legal
Maxims, page 255, it is said: "A man may not take advantage of his own
wrong to gain a favorable interpretation of the law. He seeks the law in
vain who offends against it." It is upon the plain principle, said WRIGHT,
Judge, in NEELEY's case, "that one can not willingly and knowingly bring upon
himself the very necessity which he sets up for his defense." It would
follow, therefore, that the conduct of the party must show that he knowingly
and willingly used language, or did acts which might reasonably lead
to an affray or a deadly conflict; and that something besides merely
going to the place where a person slain is, with a deadly weapon, for the
purpose of provoking a difficulty, or with the intent of having an
affray, is required in order to constitute such wrongful act. But it is not
necessary that the additional acts or words should be done or said at the time
of the homicide. (NEELEY's case.) The former conduct of the defendant
towards the party slain, with all of the attending circumstances occurring before,
and in connection with the fact that he went to the person slain, and his
language and bearing toward him at the time of the homicide, may, and
frequently do, constitute that character of provocation which estops defendant
from pleading the necessity which otherwise could be interposed. But, reduced to the exact proportion of this
case, the question is this: Suppose that a party without authority, not
being an officer, rides rapidly up to another, with pistol in hand, intending to
take his gun or other property by virtue of a writ, but says nothing,
nor does any act, tending to show an immediate intention to execute the writ;
will he be denied the right of defense, if he kill to save his own life?
Will the fact that he thus approached the other, with pistol in hand,
compromit his right of complete defense? He is armed, has the intent, and
rapidly approaches, but says nothing nor does any acts tending to show the
immediate intention to consummate the wrongful act. *13 Bearing directly upon this question, Mr.
BISHOP says: "Between preparation for the attempt and the attempt
itself there is a wide difference. The preparation consists in devising
or arranging the means or measures necessary for the commission of the
offense. Attempt is the direct movement towards the commission, after the
preparation is made. To illustrate: A party may purchase and load a gun,
with the declared intention to shoot his neighbor, but, until some movement
is made to use the weapon upon the person of his intended victim, there is
only preparation and not an attempt." "The movement to use the weapon upon the
victim need not be the last proximate act prior to the consummation of the
offense. If it be the first of a series of steps towards the execution--a
commencement of execution--it will suffice." Now it must be borne in mind that there was no
prior conduct or previous difficulties or ill feeling between any of these
parties, connecting itself with the acts immediately attending the
homicide, as was the case in the NEELEY case. Hence, can the acts of these
defendants at the time of the homicide, without color from any other source,
be held such provocation as will deprive them of the right of defense? Are
they such acts (standing alone) as will in law have this terrible effect?
Are defendants or either of them by these acts to be adjudged felons,
although they took the life of DAVIS to save their own? We think not. As before intimated, immediate acts must
condemn; for there is a perfect want of any other acts, malice or bad blood. In
fact, it was the merest accident that CARTWRIGHT was sent with the writ,
or that NASH was summoned by him. DAVIS did not know that they had the
writ, but from his position in the wagon and the manner in which he constantly
held his gun, he was evidently expecting some one in pursuit. And
just here it may be observed that his attitude in the wagon, and the position
in which he held the gun, may very satisfactorily account for CARTRIGHT
having out his pistol. There being no such provocation as would
compromit defendants' right of defense, and there being no attempt to execute
the writ, was it proper for the learned judge below to assume in his charge
these phases of the case? We are clearly of the opinion that it was not. The
evident effect of such a course is to impress the jury with the belief
that the acts of defendants were such provocation, and also that their acts
constituted an attempt to seize his gun. With such belief the jury could
not have consistently acquitted defendants or either of them. If these
defendants, whether officers or not, charged down upon DAVIS and
commenced firing upon him, they are guilty of murder at least; and if the jury
so believed, they should have convicted them of such offense. But, on the
other hand, if DAVIS commenced the battle, and defendants fired in their
complete self-defense, they should not be convicted, and the jury should have been
told so, untrammeled with any such condition as was done in this case. *14 We do not think that the other assignments
relied upon for a reversal are well taken. For the errors in the charge of
the court, the judgment is reversed and the cause remanded. Reversed and remanded. |
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