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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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