SUPREME COURT RECORDS PAGE 19

 

File contributed by Lisa Lach and proofed/formated by Dena Stripling

 

Tex.Ct.App. 1883.

SAM LEWIS v. THE STATE.

15 Tex.App. 647, 1883 WL 9007 (Tex.Ct.App.)

 

Cite as: 1883 WL 9007, *4 (Tex.Ct.App.))

 

APPEAL from the District Court of Fayette. Tried below before the Hon. L. W.

MOORE.

*1 By indictment, filed in the District court of Fayette County, on November

17, 1879, the appellant was charged with the murder of William FINKELSTIEN,

on the twenty-first day of October, 1879, by striking him on the head with a

shovel. The conviction was for murder in the first degree, and the

punishment awarded by the jury was confinement in the penitentiary for the

term of his natural life. The trial was had in November, 1882.

Nat HOLMAN was the first witness for the State. He testified, in substance,

that he knew the defendant, but was not acquainted with William FINKELSTIEN,

the deceased. The first and only time he ever saw the deceased was at his,

the witness's, gin, in Fayette county, Texas, on the evening of _______,

1879. Deceased was then alive, but suffering from a wound on the right side

of his head, just above and behind the ear. The wound was about two and a

half or three inches long and about a half inch deep. The skull was crushed

in, but the skin was not broken. The indentation was large enough to hold an

egg. When the witness reached his gin that day, he found the deceased lying

on some bagging under the cotton shed, wounded as described, with the blood

flowing from his nose, mouth and ears. He was then alive, but speechless. He

muttered unintelligibly several times before his death, which occurred some

four hours afterward. Several persons were with the deceased when the

withess reached him, and were pouring water over his head, among whom Cellis

HOLMAN and Felix BRIDGE.

Cellis HOLMAN showed the witness the shovel with which the wound was said to

have been inflicted. The witness knew the shovel well. It had been in use at

the gin for several years, being used for shoveling cotton seed. It was a

large iron shovel, with a handle about four feet long, and weighed some

eight or ten pounds. At the place where the handle fitted in, commonly

called the eye, there was a double thickness of the iron, making the entire

thickness of the iron at that place about a quarter of an inch. Witness

bought this shovel because of its peculiar make, and had never seen another

like it. If the wound on the deceased was actually inflicted by this shovel,

he must have been stricken with the eye of it, as no other part of the

shovel would make such character of wound. Witness did not go up into the

gin that day, but went up there the next day??

Proceeding with his testimony, the witness said: "When I went up into the

gin next morning, I found, in the main room, a pool of blood, about the

middle of the walk running from the front door back to the gin stand. This

pool of blood was near where the shaft comes up through the floor. It was at

a point about opposite the middle of the second left hand cotton seed stall,

as you go into said room from the front door. There were three cotton seed

stalls on the right hand side as you went in said room from the front door,

and each stall was separated from the other by a plank partition. There were

also three stalls on the left hand side, but the one nearest to the gin was

a sort of half stall. These stalls were usually filled with cotton seed. A

man standing at the gin stand could not see to the floor where the blood

was, but could have seen, around the corner of the second stall, any person

standing erect. I have owned the gin for several years, and am perfectly

familiar with its interior." Witness saw the defendant just before the

killing, but saw no more of him until the last term of the court.

*2 On cross-examination, the witness stated that he was not present, and

knew but little about the killing. He reached the gin about two o'clock p.

m. He had no recollection of having previously seen the deceased. He was not

at the witness's house on that morning. Morgan BRAKER, Cellis HOLMAN, Felix

BRIDGE, and four or five transient white men were at the gin when the

witness arrived there. One of these white men was named RUSSELL, and another

ROBERTS. Witness was present at the inquest held by justice SMITH, and wrote

down the testimony, but did not remember who constituted the jury. Witness

was taking no particular interest in the prosecution, but had said that if

the defendant got his just dues he would be hung. Cellis HOLMAN was feeding

the gin on the day of the killing. The defendant was at the time, and had

been for three months, in the employ of the witness. Witness knew of no

difficulty between the defendant and Cellis HOLMAN. With reference to this

witness's testimony, the transcript recites as follows:

"In the absence of defendant's counsel, the district attorney asked where he

was, when witness replied in a low voice: 'I guess he has got enough of it.'

The court did not hear the remark. The attorney for the defense had absented

himself without the knowledge of the district attorney and whilst the

district attorney was examining the witness."

Cellis HOLMAN was the second witness for the State. He testified that he

knew both the defendant and the deceased. The latter was killed at Nat

HOLMAN's gin in Fayette county, in the month of October, but witness could

not recall the year. Witness was present when the deceased died. He was also

present and testified before the coroner's inquest. Witness was feeding the

gin on the day of the homicide. The duty of the defendant in the gin was to

shovel up cotton seed in the small room containing the gin stand, and take

them to the stalls in the large room. For this purpose he used a large iron

shovel, which is the weapon with which he killed the deceased. He had often

used the shovel and was familiar with it.

While witness was at his work at the gin stand on that day, the defendant

brought him a woman's sack, saying that he had just bought it from a peddler

down stairs, and asked if witness thought it large enough for his,

defendant's wife. Witness told him to try it on, and that if it would fit

him it would fit his wife. About this time the deceased came up stairs and

asked witness if he did not wish to purchase something. Witness replied that

he did not, that he had no money. Deceased replied: "Yes, you have plenty of

money." Witness then told him that possibly he would go down stairs

presently and look at his goods. Deceased then turned to go down stairs,

when defendant demanded of him to take the sack back, as it would not fit

his wife. The deceased looked back and said: "I don't do business that way;

that is the way children do business," and walked on. Defendant thereupon

reached back and secured the iron shovel. He caught it by the handle, threw

it up in a striking position, and followed the deceased. When defendant got

just about the corner of the partition dividing the first cotton stall

nearest the gin stand on the right hand side going from the gin stand to the

front door, the witness saw him strike forward with the shovel. Witness

could not see FINKELSTIEN, the deceased, at that time, as he had passed the

said partition, but could see the defendant plainly. He saw the shovel as it

went down, but could not see what it struck, as, when it went down, the

shovel part passed down on the other side of the partition from the witness.

The gin was running at the time, and making so much noise that the witness

could not hear the sound of the blow, or whether any thing was said when it

was inflicted.

*3 After striking the blow the defendant came back to the gin stand, threw

down the shovel, and said: "D____n him, I got him!" Witness stopped the gin,

ran around to the place where he saw the defendant strike the blow, and

found the deceased lying forward on his face, in the walk, with his head at

a point about opposite the middle of the second stall. He had a wound on the

right side of his head, just back of the ear, and was bleeding profusely.

The defendant came up, and witness asked him: "Sam, what did you kill the

man for?" Defendant looked at the man, laughed, said nothing, sprang out of

the window and ran towards the river bottom. Witness ran to the door and

called a man who came with the deceased to the gin, told him FINKELSTIEN was

killed, and he and witness, after washing deceased's face, carried him down

stairs and laid him on some cotton bagging under the cotton shed. Witness

saw the defendant plainly when he struck the blow. Witness, defendant and

deceased were the only parties in the gin at the time of the killing.

Witness saw no more of the defendant until at the previous term of this

court. He, witness, showed Nat HOLMAN the shovel with which the blow was

struck on the same day. It was a heavy shovel with a handle three or four

feet long. The shovel was usually used with both hands. Defendant held it in

his right hand when he struck the blow. Defendant did not offer to assist

the witness, either to wash deceased's face or to take him down stairs. He

merely looked at deceased after he had felled him, laughed and ran off.

Witness thought he could recognize the man who was with the deceased on that

day, and pointed out a man present in court as the individual. He was not

certain the individual indicated was the man, but believed him to be.

Cross-examined, the witness stated that the deceased had a whip in his hand

when he came into the gin, and still had it when he started out. It was

rather a large sized whip, but witness did not take close enough notice of

it to be able to describe it. It was lying near and at the side of deceased

when witness got to him after he fell. Witness did not on a former trial of

this case say that after the deceased fell he still held the whip in his

hand. Deceased made no effort or demonstration to strike the defendant with

the whip. If he had, witness would have seen it. Witness at no time told Tom

BRAKER and Felix BRIDGE that he did not see the killing. Witness said

nothing before the inquest about the defendant laughing after the deceased

fell, because no question was propounded to him on that point. He merely

stated that defendant looked at the man and ran off. Previous to this

killing witness and defendant had had difficulties--one or two little

fights--but had made friends, and witness had no grudge against him at the

time.

The witness denied that he had at any time after the killing told Handy

HOLMAN that he now "had Sam just where he wanted him;" that he "was the only

witness against him and could swear what he pleased." He had never

threatened to "get even" with the defendant. Witness did not examine the

sack purchased by the defendant. When defendant asked him if the sack would

fit his wife, witness told him that it would if it would fit him. There were

three stalls on each side of the big room. Witness was standing at the gin

stand, feeding it when the blow was struck, and was facing the big room. To

feed a gin requires care, but in feeding one the witness could look about

and around without cutting his fingers in the gin. Witness denied that he

had ever said to defendant's counsel that, when he asked defendant why he

had killed the peddler, the defendant asked: "What! have I killed him?"

*4 Re-examined by the State, the witness testified that he was standing some

nine or ten feet from the defendant when he struck the blow, and was looking

directly at him. The deceased could not have struck the defendant without

the witness seeing him. Witness did not know the exact distances in the gin,

and when he spoke of distances did so upon opinion. When witness went to the

deceased after he had fallen, the whip lay a little to his right on the

cotton seed. Deceased had the whip in his hand when he started off. The

first stall on the right hand side going from the gin stand to the front

door is partitioned from the second stall by a plank partition about seven

feet high, but on the side nearest the gin stand there was no partition

between the first stall and the way leading from said gin stand. The cotton

seed in said stall was kept from falling in by an old press door, which was

about four feet long, and three and a quarter feet wide. Witness could

easily see over said door, and there was nothing to obstruct his view

beyond, between the gin stand and the dividing partitions between the first

and second stalls.

M. LAUDERSTIEN was the next witness for the State. He testified that he was

the man pointed out by the last witness as the companion of the deceased at

the time of the killing. The witness Cellis HOLMAN, was mistaken; this

witness was not the companion of deceased on that occasion. The deceased's

companion at that time was one CAIMER, now in Mississippi or Kentucky. The

witness, however, had traveled with deceased before his death for five

years, peddling, and they were together on Holman's place about a week

before the killing. The witness Cellis HOLMAN had often seen this witness

and deceased together. Here the State closed.

T. W. SMITH was the first witness for the defense. He testified that he was

a justice of the peace at the time of the homicide, and held the inquest on

the deceased's body. The papers containing the evidence were handed by

witness to B. D. SHROPSHIRE, county attorney, and he failed to turn them

over to the proper officers; for which failure the witness was indicted.

Witness had not since seen the said papers, and had no idea what had become

of them, nor could he now remember their contents. Witness could not

remember the parties who constituted the coroner's jury. At this point the

district attorney stated that he would admit the loss of the papers, and

consent that parol evidence be received of their contents.

C. MICHAELIS was the next witness for the defense. He testified that he was

a carpenter by trade, and that he could draw a correct diagram of a given

place. He drew the diagram in evidence, which is a diagram of the Nat HOLMAN

gin, in Fayette county. It was prepared on the day preceding this trial by

the witness, who, for the purpose of drawing it, visited the said gin in

company with the defendant's counsel and two colored men. The spots in the

center of the building, as indicated on the diagram, represented blood

spots, though witness could not of his own knowledge say that they were

blood spots. The witness, however, saw the spots. They were on a small

square movable platform in that room, which platform covered the hole in the

floor through which the shaft passed when the gin was in motion. The large

room is thirty-four feet long. The distance from the gin stand to the blood

spots is twenty-eight feet. There are stalls for cotton on each side of the

large room, but there were no partitions in them when witness was at the

gin. It would depend upon the height of the partitions whether a man could

see from the gin stand to the middle of the second stall.

*5 Cross-examined, the witness stated that, if the partition between the

first stall on the right as you go from the gin and the way running between

the stalls was a door four feet by three and a half feet, a man at the gin

stand could easily see to the corner of the partition between the first and

second stalls.

I. B. HOLLOWAY, district clerk, testified, for the defense, that he was

district clerk when FINKELSTIEN was killed. He knew nothing about the papers

containing the proceedings of the coroner's inquest in that case. He had

never seen such papers.

Handy HOLMAN was the next witness for the State. He testified that, when

FINKELSTIEN was killed, he was in the field on the Nat HOLMAN place. Witness

had a conversation with Cellis HOLMAN a few days after the killing occurred,

in which he asked Cellis if he saw the killing, to which Cellis answered

that he only saw the defendant raise the shovel and make the blow; that he

did not see the blow when it fell. Cellis HOLMAN and the defendant had a

difficulty a short time before the killing.

Tom BRAKER testified, for the defense, that he lived on Nat HOLMAN's place,

and was familiar with the gin house. Witness was at the gin house a few days

before this trial, along with the attorney for the defense and other

gentlemen, and pointed the blood spots out to them. Witness knew them to be

blood spots, because he saw them shortly after the killing. There were

stalls on each side of the big room, six or seven feet high. A man standing

at the gin stand could not see the point where the blood spots were. He

could, however, have seen a man throw up a shovel with a five foot handle.

Witness could not say that a man standing a few feet back from the blood

spots could not be seen from the gin stand. The partition between the end of

the first stall, near the gin stand, and the walk leading by it was not, at

the time of the killing, constructed of an old three foot door, but was a

partition six or seven feet high. This the witness knew, because his cotton

was in that stall. Witness saw the woman's sack, which was the cause of this

difficulty. It was old, moth eaten and full of holes. "If a man was standing

behind the blood spots, and another was standing a few feet behind him, and

nearer the gin stand, a person at the gin stand could see the latter, but

not the former."

Felix BRIDGE testified, for the defense, that he was picking cotton in the

neighborhood at the time of the killing. Soon after the homicide occurred,

Cellis HOLMAN sent for the witness and explained to the witness how the

homicide occurred. He said that the deceased was a peddler, and, at the gin,

sold the defendant a sack, with which the defendant became dissatisfied;

that defendant asked him if he, Cellis, thought it would suit his,

defendant's wife; that he, Cellis, replied to the defendant: "It may suit

you, but it won't suit your wife;" that thereupon defendant offered the sack

back to the peddler, and demanded return of the purchase money; that the

pedler replied: "I do not do business that way," and turned and walked off,

when the defendant picked up the cotton shovel and followed; but that he,

Cellis, did not see the defendant when he struck the blow.

*6 On cross-examination, the witness stated that he was the defendant's

father-in-law. This conversation occurred a few days after the killing. The

witness, at that time, was somewhat excited about the affair. No one was

present at this conversation, save the witness, Cellis and the peddler's

partner. Others came up afterward.

Monroe RICHARDSON testified, for the defense, that he was in the

neighborhood when the killing occurred. Cellis HOLMAN told him about the

attendant circumstances the day after the homicide occurred. He said, in

that connection, that the defendant came running by him, and said: "I have

hit that fellow;" that he went up to the man, and asked the defendant: "Sam,

what did you kill this man for?" That defendant replied: "What! Have I

killed him? Is he dead?" and then jumped out of the window, and ran off.

Witness worked for Mr. Nat HOLMAN, and was familiar with the gin. A man

could not occupy the gin stand and see to the middle of the second stall; at

least, the witness could not. There were stalls on each side of the big

room. Witness did not know the height of the partitions.

 

Cross-examined, the witness stated that he did not know whether or not the

partition nearest the gin stand was formed of a small door. No one was with

witness when he had the conversation with Cellis, deposed to. Witness had

not thought of that conversation since, until called upon to testify in this

case. Nothing has occurred to fix this conversation in the witness's mind.

Witness had had no other conversation with witness Cellis. Here the

defendant rested.

In rebuttal, the State produced several witnesses who testified that the

reputation of the State's witness Cellis HOLMAN was above reproach or

suspicion.

Nat HOLMAN, recalled for the State, testified that an old press door, four

feet by three and a half, was used to enclose the side of the first stall

nearest the gin stand, which side was not planked up. It was thus used to

prevent cotton seed from falling out on the walk. When used for this

purpose, it was set up on its side. When not in use, it generally lay flat

on the floor. Witness did not know its position on the day of the homicide.

The general and requested charges are here incorporated in full, in

accordance with the direction of the court. The general charge reads as

follows:

"The defendant is on trial, charged with the murder of Wm. FINKELSTIEN, and

pleads not guilty??

Every person of sound memory and discretion, who shall unlawfully kill any

reasonable creature in being, within this State, with malice aforethought,

either express or implied, shall be deemed guilty of murder. Murder is

distinguishable from every other species of homicide by the absence of the

circumstances which reduce the offense to negligent homicide or

manslaughter, or which excuse or justify the offense.

All murder committed with express malice is murder in the first degree, and

all murder committed with implied malice is murder in the second degree, and

the distinction between express and implied malice determines whether murder

is of the first or second degree.

*7 Malice means that state of a wicked and depraved mind fatally bent upon

mischief.

The important inquiry in determining the existence of express malice is, do

the external circumstances, the acts and the conduct of the accused at the

time, before and subsequent to the killing, if such there be, indicate a

cool and deliberate mind and formed design to kill? If so, there is express

malice.

There is no certain or definite space of time necessary to intervene between

the formed design to kill and the fatal blow. A single moment of time may be

sufficient. All that is required is that the mind be cool and deliberate in

forming its purpose, and that the design to kill is formed.

If you believe from the evidence that the defendant did kill Wm. FINKELSTIEN

with express malice as before defined, you will convict him of murder in the

first degree.

Implied malice is what the law implies from every voluntary killing of a

human being, when the circumstances, upon one hand, show no express malice,

nor upon the other any excuse justification or mitigation, nor reduce the

offense to manslaughter. Every voluntary killing of a human being without

deliberation, from some rash, inconsiderate impulse, would be upon implied

malice, and would be murder in the second degree.

If you believe the defendant did kill William FINKELSTIEN without express

malice, yet if you believe such killing was committed under such

circumstances as that malice is implied, as before defined, you will convict

of murder in the second degree.

If you have any reasonable doubt of the guilt of the accused, you will

acquit, and so you will acquit of any grade of the offense of which you have

any reasonable doubt. If you find the defendant guilty of murder in the

first degree, you will assess his punishment at death, or by confinement in

the penitentiary for life.

If you find him guilty of murder in the second degree, you will assess his

punishment by confinement in the penitentiary not less than five years; in

either case stating the degree of murder.

The jury are the judges of the credibility of the witnesses, and weight of

the testimony.

L. W. MOORE, Judge."

The requested and refused charges read as follows:

"First. The jury are the sole judges of the weight to be given to the

testimony of each witness, and the credibility of each witness. They can

discard a portion of the testimony of a witness or all of his testimony. A

witness may be impeached by his own contradictory statements, or by his

character for truth and veracity in the neighborhood in which he lives being

successfully attacked. In either case the jury has the privilege of

discarding his evidence.

Second. Although the law implies malice in case of unlawful killing by means

calculated to produce death, still in such case the burden of proof does not

shift from the State to the defendant, but the burden remains on the State

to prove the degree of the offense aliunde the actual killing.

*8 Third. Every person is presumed to understand the probable result of his

acts, and when an unlawful act is clearly shown to have been committed, it

is for the defendant to show facts which mitigate, justify or excuse, so

that a reasonable doubt at least may arise upon the entire evidence as to

his guilt. If the jury believe from the evidence that the deceased, William

FINKELSTIEN, said anything or committed any act at the time of the killing,

which would mitigate, justify or excuse the killing, they should take into

consideration such saying or act, and find their verdict accordingly; that

is, either find the defendant guilty of some lower grade of offense than

murder in the first degree or acquit the defendant.

Fourth. (Murder in the first degree has been defined to you.) A murder

committed under the influence of sudden rage, resentment, passion or anger

at some insult offered or wrong done to the defendant by the deceased, at

the time of the killing, cannot be murder in the first degree unless coupled

with something said or act done by the defendant at the time, before or

after the killing, tending to show malice as defined by the statute.

Fifth. In impeaching a witness by proving his bad character for truth and

veracity, such character must be notorious in his neighborhood, and while

the proof may be made by one witness, still, in weighing the evidence, the

production of one witness would not ordinarily be satisfactory. So, in

proving that his character is good for the same, it should be notoriously

good in the neighborhood, and one or two witnesses to that fact will not

ordinarily suffice."

"These charges are refused because, so far as they are correct legal

propositions, and so far as the facts require the application, they are

embraced in the charge of the court.

L. W. MOORE, Judge."

"If the jury believe from the evidence that there has been no malice proven,

either express or implied, they cannot convict the defendant of murder in

the first degree.

Where the fact of the killing has been clearly shown, and that it was done

under such circumstances as in law will mitigate, excuse or justify the act,

the law in such cases implies malice, and makes the killing murder, but it

would be murder of the second degree."

"Refused because embraced in the charge of the court.

L. W. MOORE, Judge."

The motion for new trial embraced the questions involved in the opinion??

 

Where an absent witness is expected to prove statements made by defendant

himself, his motion for continuance must show that they are part of the res

gestae, or that the testimony is competent for some other reason.

 

An application for a continuance because an attached witness had been

released, without defendant's authority, eight days before the case was

reached for trial, was properly refused where it failed to show that he did

not learn such fact in time to have secured the witness by the service of a

new process.

 

On a trial for murder, it was not error to refuse to grant the defense time

to take down the testimony.

 

Newly discovered evidence as cause for a new trial is not sufficient when

its materiality, probable truth, and exculpatory nature are not made

manifest.

 

An exception that "the court erred in the charge" is too vague to invoke a

revision of the charge given by the trial court, but in felony cases it is

the practice on appeal to revise the instructions given to the jury.

 

In a criminal prosecution for homicide the defense reserved exceptions on

the ground that during the progress of the trial the judge absented himself

from the bench and court room without notice to counsel and that during his

absence the state's counsel proceeded with the examination of a state's

witness and when the defense objected to the manner of interrogation there

was no judge present to sustain or overrule the objection and illegal and

damaging evidence went to the jury. But the judge's explanation states that

his absence was very brief and of necessity and he supposed the counsel had

taken notice of it; that counsel for the defense did not complain of any

evidence introduced during the interval but said he had objected to some

testimony and counsel for both sides said they were awaiting the judge's

return and the defendant's objection to the testimony was then presented.

Held, that the bill of exceptions was defective because it did not disclose

what the illegal testimony was.

 

In a prosecution for homicide the defense reserved an exception because the

trial court refused to admit evidence of the magistrate who held an inquest

on the body of the decedent, in the absence of "the papers." The bill of

exceptions failed to show what "papers" it referred to and the trial court

received the evidence of the magistrate except with regard to the loss of

the record of the inquest and the state admitted the loss of that record and

conceded the right of the defense to prove its contents. Held, no error was

apparent.

 

That a defendant's challenge for cause was improperly overruled, and he was

thereby forced to the peremptory challenge of a disqualified juror, is not

error of which he can complain unless he exhausted his peremptory challenges

before a full jury was obtained.

 

Where one, with a sedate and deliberate mind and formed design, kills

another, there is express malice, although the design is formed immediately

before the killing.

 

Murder in the first degree can be perpetrated by other means than those

specified in Pen.Code, art. 606, and the express malice which characterizes it may be

evidenced by other external circumstances besides lying in wait, antecedent menaces,

former grudges and concocted schemes, and even in a sudden difficulty homicide may be

committed under circumstances of such enormity, cruelty or deliberate malignity as

will suffice to show that it was done with express malice and is murder in the first

degree.

 

Evidence held to sustain conviction of first degree murder.

 

In a prosecution, tried in 1882, for homicide committed in 1879, testimony

of a witness for the state relating to the homicide in question, the date of

which was fully proved by other witnesses, was competent, although the

witness was unable to give the year in which the killing occurred.

A. S. CHEVALIER, filed an able brief for the appellant.

J. H. BURTS, Assistant Attorney General, for the State.

 

HURT, JUDGE.

The appellant, Sam LEWIS, was indicted for the murder of William

FINKELSTIEN, a peddler, on the twenty-first of October, 1879. He was tried

and convicted of murder in the first degree; his punishment being assessed

at confinement in the penitentiary for life. From this judgment and sentence

he appeals and relies upon a number of assignments of error.

His first error is the action of the court in overruling defendant's motion

to quash the venire upon the ground of the insufficiency of the return of

the sheriff touching his diligence to find and summon certain veniremen. In

regard to the jurors not summoned the return of the sheriff is as follows:

"And the following named persons whose names appear upon said venire were

not summoned for the following reasons, to-wit: F. KENELl, W. CARLES, C. H.

BURNS, D. P. CROFT, John BURK and W. S. LANE, are all out of Fayette county,

and could not be found in said county although diligent search was made for

them by the sheriff of Fayette county and his deputies; and H. C. GERDES,

John FRIERSON, A. GROOS, W. DICK, August MISCHER and N. M. COCKRELL were not found

in Fayette county although diligent search was made for them at their residences and

places of business, and at any point at which they were

likely to be found by the sheriff of said Fayette county and his deputies."

Article 614, Code Criminal Procedure requires the diligence to be stated.

This return, we think, fully complies with the Code, and, if true, great

pains was taken to summon these jurors.

*9 By the second assignment it is insisted that the court erred in

overruling defendant's motion for continuance.

Jack LEWIS, of Colorado county, S. SMITH, of Bastrop, and Handy HOLMAN, of

Fayette, were the witnesses desired. LEWIS was attached by the sheriff of

Colorado county, and was released by the order of John MITCHELL, Esq., on

the fifteenth day of November, 1882. Defendant in his motion states that

MITCHELL was not an attorney in the case, and that he was not authorized to

release this witness LEWIS. This may be true. The question, however, is one

of diligence. LEWIS was discharged on the fifteenth day of November, and the

cause was not reached or called for trial until the twenty-third of that

month. We are not informed by defendant's motion at what time he learned

that LEWIS had been released from the attachment. It may have been the same

or the next day, leaving ample time for another attachment to have been

issued, served and the attendance of the witness secured.

Again, the evidence of said witness LEWIS is not shown to be competent. In

his motion defendant says "that he expects to prove by said witness that

affiant told witness, after the murder, * * that he did not intentionally

kill deceased, but deceased struck him over the head with a buggy whip, and

he returned the blow with no intention of killing the deceased." That

"affiant told witness," etc. When and where did he tell the witness? To be

admissible, the statement of affiant (the defendant) must have been res

gestae, and all of the facts and circumstances, the time and place, must be

stated, which are necessary to show that, in fact, his statement was res

gestae.

By the next witness the defendant expected to prove "that there existed in

the county so great a prejudice against defendant that he could not obtain a

fair and impartial trial in said county; that he is a material witness on a

motion for change of venue. A sufficient answer to this is that there was no

motion made for a change of venue. If defendant had filed his motion for

that purpose, and desired witnesses to establish his right to a change, the

court no doubt would have caused proper process to be issued, and would have

given defendant time to assert his right in regard to this motion. But, as

there was no effort made to assert his right to a change of venue, we

presume the defendant abandoned this purpose.

The other witness is Henry SMITH. By this witness defendant expects to prove

"that HOLMAN (a very important witness for the State) before the jury of

inquest did not swear that affiant laughed when he saw that deceased was

dying." It is not stated in the motion for continuance that HOLMAN said

anything upon this subject at all. His attention was not called to this

matter, nor does it appear (from the motion) that the negative of what the

witness swore on the trial was even so much as hinted at in his testimony

before the inquest.

 

*10 That a witness fails to state everything that was done and said by the

parties at the time of the occurrence of the facts to which he swears is not

a contradiction. To be such, he must make a statement in regard to the fact.

If he omits a fact, his attention should be drawn to it, or, if he is asked

if what he has stated was all that was said by the party or parties, and he

answers in the affirmative, and upon the trial he embraces other facts, in

his evidence, than those related by him before the inquest, the defendant

would have the right to show this. This, however, is not the state of the

question in the case in hand. As presented to us by the record, HOLMAN

simply testified to some facts which were omitted in his evidence before the

inquest, and these not in conflict but harmonious with his evidence there

given.

The court did not err in overruling the motion for continuance.

It is assigned as error that the court erred in holding the juror ZREEMER

competent. This juror was challenged peremptorily, and the defendant did not

exhaust his challenges. It is now settled by this court that, to complain of

the action of the court in erroneously holding a juror competent, the

defendant must exhaust his peremptory challenges. We are of the opinion,

however, that the juror was impartial and competent. The juror stated that

when he heard of the killing "he said the defendant ought not to have killed

the deceased, but that he had formed no opinion, nor then had any opinion

about the case."

Fourth assignment is "that the court erred in permitting Nat. HOLMAN, a

witness for the State, but one who was not present at the killing, to give

his opinion of the manner in which the blow was struck, and the relative

position of the parties, when the State had failed to show witness to be an

expert in such matters." HOLMAN described the wound minutely, and the shovel

(the weapon used), and then gave his opinion that, "if the wound inflicted

on FINKELSTIEN was made with the shovel, he must have been hit with the eye

of it; no other part of the shovel could make the same kind of a wound as

was on him." This evidence, to wit, the witness's opinion, was not

competent. But was the defendant injured by it? We think not. The wound was

of that character, taken in connection with the formation of the shovel, as

to place it beyond cavil that, if inflicted with the shovel, it must have

been with that part known as the eye. This opinion of the witness was

perfectly patent, and, whether expressed or not, the jury would have

irresistibly reached the same conclusion. If the State had been seeking to

identify the weapon with which the blow was inflicted, by this evidence, we

would hesitate before sanctioning such means. This, however, was not the

case, there being an eye witness to the fact that the blow was inflicted

with the shovel.

5. "During the progress of the trial the honorable judge absented himself

from the court room, and remained outside without notifying counsel. The

counsel for State continued to examine his witness in the absence of the

court, and when counsel for the defense arose to object to his manner of

interrogating the witness, no court was present to sustain or overrule the

objection to the evidence, and during this interval illegal and damaging

evidence to the defense went to the jury." The record informs us "that the

presiding judge retired under a call of nature for a brief minute, supposing

the counsel would take notice thereof. Counsel for defendant did not

complain of any testimony introduced in his absence, but stated that he had

offered objections to some testimony, and that counsel for both parties said

they waited his return and then presented the objection to the testimony."

*11 In the first place, we are not informed of what the illegal and damaging

testimony complained of by defendant consisted. This is fatal to the bill of

exceptions. Again, the momentary absence of the presiding judge during the

examination of a witness, under the circumstances mentioned in the record,

will not of itself justify this court in reversing the judgment. If illegal

or improper evidence had been introduced by the State, over objection of

defendant, during this absence, a motion to exclude would have resulted to

his relief against such evidence. But we cannot hold the opinion of counsel

that there was illegal evidence admitted; the facts must be set out that

this court may pass upon their illegality. Notwithstanding the very high

respect in which the counsel for defendant is held by this court, we must be

permitted to say that we view this whole matter as frivolous.

Sixth assignment: "The court erred in admitting the evidence of HOLMAN (a

witness for the State) as to the murder, when the said witness knew nothing

about the date of the killing, not even being able to give the year of the

killing." The date of the killing was very clearly proven by other

witnesses. The witness HOLMAN referred to the same homicide. That he failed

to remember the year is no objection to the competency of his evidence.

6 1/2. "The court refused to grant the defendant time to take down the

testimony." In this there was no error.

7. The court refused to give any of the charges asked by the defendant. The

proper charges requested were embraced in the charge of the court. The other

charges refused were without facts, or were upon the weight of the evidence,

and were properly refused.

7 1/2. "The court refused to admit the evidence of T. W. SMITH, the justice

of the peace who sat on the inquest held over the body of the deceased in

1879, in the absence of the papers." What papers? We may presume that the

testimony taken before the jury of inquest was reduced to writing. But

certainly bills of exception should be more specific. What facts did

defendant propose to prove by this witness? We know not. Were they competent

and beneficial to the defendant? Here again we need light. But the

explanation of the learned judge, we think, shows, that there is nothing

whatever in this billl. We are informed by the record that the State

admitted the loss of the papers, and offered to permit any testimony showing

their contents, and that the loss was known upon a former trial, and it was

only as to the loss of the papers that the court would not hear further

testimony by SMITH. What necessity was there for any proof of the loss of

these papers by SMITH or any other witness, when their loss was an admitted

fact?

8. The court gave verbal instructions to the jury, to wit: "that they should

not cast lots in coming to a verdict." In this there was no error.

9. "The court erred in the charge." The bill of exceptions points out no

error in the charge. However, this being a felony, the charge of the court

has been thoroughly examined, and we find that the law applicable to the

case made by the evidence was fully and clearly given in charge to the jury.

*12 10. "The court erred in refusing to grant a new trial in the case, on

the grounds set forth in the motion of defendant therefor." In addition to

some of the matters already mentioned, the motion for new trial contained

two others: 1, newly discovered evidence; 2, that the verdict of the jury is

contrary to and not supported by the evidence. This newly discovered

evidence consists of the facts set forth in the affidavit of B. D.

SHROPSHIRE, Esq., in regard to those lost papers, already mentioned in this

opinion. Neither the motion for new trial nor the affidavit of SHROPSHIRE

indicates that a material fact, beneficial to the defendant, could be

established by those papers, if found. The motion seeks a new trial upon the

ground that there is a probability of finding those papers. Suppose they

should be found, how would defendant be benefitted by them? To authorize a

new trial upon this ground, this must be shown in such clear light as to

place it beyond doubt. To be explicit: 1. The newly discovered evidence must

be made to appear material. 2. Not in conflict to such extent as to render

its truth improbable. 3. It must be beneficial, exculpatory, in its nature.

Appellant being convicted of murder of the first degree, it is urgently

insisted by his learned counsel that the evidence fails to support the

verdict finding him guilty of that offense; and it is very plausibly argued

by counsel that, as there was no proof that defendant took the life of

deceased by starving, torture, etc., or by lying in wait, or that he had

threatened to kill him, or entertained grudges against him, or had concocted

schemes to do him bodily harm, that, therefore, there was no proof of

express malice. In this we cannot agree with counsel for defendant.

Express malice is where one with a sedate and deliberate mind and formed

design kills another; and this formed design is evidenced, proven, by

external circumstances discovering that inward intention; and this formed

design, inward intention, is discovered, made manifest, by such external

circumstances as taking life by starving, torture, etc., or by lying in

wait, or antecedent menaces, former grudges and concocted schemes to do

bodily harm. These are illustrations of the external circumstances which

discover the formed design, the inward intention, but they do not exhaust

the whole field of facts and circumstances by which the formed design, the

inward intention, may be discovered.

If it is shown by any fact or circumstances--is made manifest--that one with

a sedate and deliberate mind and formed design, kills another, the killing

would be upon express malice, and these external circumstances discovering

the formed design may transpire at the time of the killing, as well as

before. "For though the killing be upon a sudden difficulty, it may be

attended with such circumstances of enormity, cruelty, deliberate malignity,

cool calculating compassings, or even calm demeanor and absence of passion,

as will be sufficient evidence to establish the inference that the killing

was the result of a sedate, deliberate mind and formed design to take life

or do some great bodily harm. Acts and admissions or other language of the

prisoner, even after the mortal stroke or killing, may often be pertinent

evidence as tending to show express malice at the time of the killing." The

last two rules apply with great force to the facts in this case.

*13 (The Reporters will give the statement of facts, charge of the court,

and the refused charge.)

We are of the opinion that the evidence supports the verdict. We have given

every question raised by the record and brief of counsel our most careful

consideration, such consideration as the gravity of the case demands, and

have not discovered an error in the record such as will warrant a reversal

of the judgment.

The judgment is affirmed.

Affirmed.

 

==============================

 

Tex.Ct.App. 1883.

POTTS v. STATE.

14 S.W. 456, 26 Tex.App. 66

 

Appeal from district court, BASTROP county; L. W. MOORE, Judge.

Haywood POTTS was indicted for the theft of a gun from one H. PERKINS. The

gun was of the value of $45, and was the property of one W. W. KNOWLES, for

whom said PERKINS was holding it. PERKINS testified that on the night of the

theft defendant came to his (PERKINS') house, in a wagon, peddling buffalo

meat; that he stayed all night, sleeping with two of the laborers on the

place in the room where the gun was; that he left the place soon after

breakfast the next morning; and that the gun was not missed until some time

afterwards. SMITHSON, the constable who arrested defendant, testified at the

preliminary examination. After the preliminary examination, and before the

trial, SMITHSON died and the testimony taken by the examining magistrate was

burned. PERKINS, who heard the testimony of SMITHSON, was allowed to

reproduce it. He stated, in that behalf, that SMITHSON testified that he

sent word to defendant that he had heard that defendant had a gun; that he

(SMITHSON) wanted to buy a gun of that kind, and requested defendant to

bring it to him for examination; that defendant sent it by one STANLEY, but

SMITHSON refused to buy it, alleging that the price was too high; that he

told STANLEY to leave it at a certain store, and to tell defendant to come

to town, as he thought that they could make a trade; that STANLEY left the

gun as requested, and a few days afterwards defendant came to town, and

offered to sell the gun to SMITHSON, stating that it was his (defendant's)

gun; that SMITHSON then arrested defendant. The clerk of the district court

testified that he saw in his office the papers comprising the proceedings of

the examining court in defendant's case, but had not seen them since the

court-house was burned. The examining magistrate testified that he reduced

to writing all the testimony given on the preliminary examination, and

turned it over to the clerk of the district court. Defendant offered no

evidence, but moved for a new trial on the ground of newly-discovered

evidence.

 

The oral reproduction of testimony given on the preliminary examination in a

criminal case by a witness, since deceased, is properly allowed, where the

examining magistrate testifies that he reduced all the testimony to writing,

and returned it to the district clerk, and the district clerk testifies that

he saw in his office the papers returned by the examining magistrate, that

his office was afterwards burned with a great many papers and records, and

that he never saw the papers in question again.

 

Where a witness, since deceased, testified before an examining court and a

witness offered to prove his testimony so given, the record of which had

been destroyed by fire, consuming other records deposited in the

court-house, was unable to repeat the language of the deceased witness, he

might testify to the substance thereof.

 

On an indictment for theft of a gun, the testimony of a deceased witness

given on the preliminary examination was reproduced orally. Such testimony

was to the effect that defendant, through a third person, offered to sell

the gun to the deceased witness, who declined to buy, but sent word to

defendant to come to see him; that defendant came, said the gun was his, and

offered to sell it to deceased; that deceased, who was a constable,

thereupon arrested him. The affidavit in support of a motion for a new trial

on the ground of newly- discovered evidence alleged that affiant, a deputy

sheriff, was present at the arrest; that nothing was said about the gun

before the arrest; and that defendant did not claim the gun. Held, that a

new trial should have been granted.

J. H. BURTS, Asst. Atty. Gen., for the State.

 

WHITE, P. J.

As a predicate for the reproduction of his testimony it was proven that

SMITHSON, the main prosecuting witness who testified at the examining trial,

was dead, and also that the testimony taken in writing at said trial,

including SMITHSON's, was in all probability destroyed in the fire which

burnt up the BASTROP court-house. No error was committed in permitting the

witnesses PERKINS and HEARN, who had heard SMITHSON testify at said trial,

to reproduce the deceased witness' testimony; and, whatever the former rule

on the subject may have been, it is now well settled that, to reproduce

testimony given at a former trial by a witness who has since died, the

person called to prove it may state its substance, if unable to repeat its

precise language.

As part of SMITHSON's testimony,--what transpired between himself and

STANLEY, who brought the gun to him for sale,--was competent, and necessary

to elucidate and explain the subsequent connection of both SMITHSON and

defendant with the gun, which was left by STANLEY in a store-house at Elgin,

at the instance of SMITHSON, to await defendant's coming, we cannot see that

the court erred in admitting the testimony. The witnesses who reproduced

SMITHSON's testimony stated that SMITHSON had sworn on the examining trial

that when defendant came to Elgin he claimed the gun as his property, and

that SMITHSON then arrested him for theft of the gun. This portion of the

testimony, with regard to defendant's claim of the gun, was the most

damaging evidence against him. In his motion for a new trial, defendant set

up newly-discovered evidence, to-wit, the evidence of one PINKARD, a

deputy-sheriff of the county, who was present when the arrest took place,

and who, in his affidavit, stated, in substance, that nothing was said

by defendant or SMITHSON about the gun before the arrest, and that defendant

did not claim the gun before or after his arrest. Looking to the

circumstances attending the case; the fact that SMITHSON was dead; that

several years had elapsed since his testimony was given at the examining

trial; that the proposed new testimony was that of a witness who was himself

present at the time of the occurrence, and who from his official position

would likely remember what criminative facts transpired; that the testimony

as given was from parties who were not present, and who were relying upon

their recollection of what another said about it,--taking, we say, all these

facts into consideration, we think the court should have granted the new

trial in order that defendant might have the opportunity to avail himself of

such newly- discovered evidence. The judgment is reversed, and the cause

remanded.

 

 

=================

 

 

 

Tex.Ct.App. 1883.

D. CARTWRIGHT AND J. NASH v. THE STATE.

14 Tex.App. 486, 1883 WL 8943 (Tex.Ct.App.)

 

APPEAL from the District Court of BASTROP. Tried below before the Hon. L. W.

MOORE.

*1 At the spring term, 1881, of the District Court of BASTROP county the

grand jury returned an indictment charging that the appellants, Dave

CARTWRIGHT and John NASH, did, on the preceding twelfth day of February,

kill and murder one B. F. DAVIS, by shooting him with pistols, etc. The case

came to trial in May, 1883, when the appellants were found guilty of murder

in the second degree, and a term of six years in the penitentiary was

assessed and adjudged against each of them.

The affray which resulted in the homicide took place four or five miles from

the town of McDade, on the road leading from there to the town of BASTROP.

William PARIS, the first witness for the State, testified that on the

twelfth day of February, 1881, he saw DAVIS, the deceased, about half a mile

from McDade on the road towards BASTROP. Witness was driving a four-mule

wagon, and was riding the left-hand near mule of the team. Deceased got into

the wagon, and seated himself about midway of it, with his right side

towards the witness. He had a breech loading double barreled shot gun on his

lap, or in his hands, with the muzzle pointing towards McDade; and in this

manner he rode about three miles on witness's wagon. While going along, the

deceased showed his cartridge belt and several cartridges to the witness.

The cartridge shells were loaded. Witness, with his wagon and the deceased,

had gone about the distance stated, and had got within about one hundred

yards of James TOWNSEND's house, when the defendants, Dave CARTWRIGHT and John NASH,

rode up in a gallop from the direction of McDade. CARTWRIGHT rode up on the right hand

side of the wagon; NASH in rear of it. CARTWRIGHT said

"Hold up there;" he had a pistol in his hand. Witness then looked around to

stop his mules, and the shooting commenced. Looking around, the witness saw

CARTWRIGHT shoot once. There had been shots before he looked around and saw

CARTWRIGHT shoot. Before the shooting began the witness had observed KELTON

(a witness for the defense) working at a chimney on the east end of

TOWNSEND's house. Several shots were fired behind the witness. He did not

see NASH until after the firing had ceased. NASH then had a pistol in his

hand. Witness thought there were from three to five shots fired, probably

more. Two of them struck the end of the wagon bed; one went through the

witness's clothing, and another hit one of his mules, entering the hind part

of its leg and coming out in front. Witness saw blood on the clothes of the

deceased, but did not see his wounds.

Cross-examined, the witness stated that after the firing ceased CARTWRIGHT

told him to take the gun from the deceased, who was rather bent over in the

wagon. Witness took the gun from the deceased, and laid it on the ground.

Deceased was still alive, but said nothing. The witness distinguished no

difference in the sounds of the different shots; but on hearing read his

sworn statement made at the inquest held the day after the killing, the

witness adhered to it in preference to his present recollection. In that

statement the witness had said that he did not know whether the deceased

fired any of the shots or not; that he did not see the deceased shoot, "but

there were sounds that seemed different shots from the pistols."

*2 Aleck WHITE, for the State, testified that he saw the deceased in PARIS's

wagon, on the McDade road, about a mile from James TOWNSEND's, between two

and three o'clock in the afternoon. When witness got in about a quarter of a

mile of TOWNSEND's, he was passed by the two defendants, who were riding in

a slow lope towards the town of BASTROP. Witness saw them when they were a

short distance behind PARIS's wagon. The witness heard three or four shots,

but was so frightened that he did not see who fired them.

Doctor HOLT, for the State, testified that he examined the body of the

deceased a day or two after the homicide, and found in it two holes, which

he took to be bullet holes made by a revolver or six shooter. One of the

bullets entered just below the right shoulder blade and came out through the

right nipple. The other bullet entered on the right of the back bone, three

or four inches below the one first mentioned, and came out below the right

nipple.

Tom BISHOP, for the State, testified that he was constable of the McDade

precinct at the time the deceased was killed. On the day that event

occurred, the witness was requested by Horace NASH to execute a writ of

sequestration which, at his instance, was being issued by the justice of the

peace, for the seizure of the gun of B. F. DAVIS, the deceased. Witness

replied that he was too unwell to execute the writ, and asked the defendant

CARTWRIGHT to execute it. CARTWRIGHT had been in the habit of executing

process for the witness when the latter was unable to attend to business.

W. H. COULSON, Sr., the justice of the peace, testified, for the defense,

that on the day of the homicide he, at the instance of Horace NASH, issued a

writ of sequestration directing the seizure of the gun which DAVIS, the

deceased, then had. While the writ of sequestration was being prepared,

Horace NASH and the defendant CARTWRIGHT were present in the witness's

office. When the writ was issued the witness laid it on the table, and

either NASH or CARTWRIGHT took it up from the table, and they went off

together. Witness supposed that it was CARTWRIGHT who picked up the writ

from the table. CARTWRIGHT had frequently executed process issued by the

witness, and attended as an officer upon the witness's court. Witness could

not say how many writs CARTWRIGHT had executed, nor how many arrests he had

made, but knew that he had executed several writs, and that the people of

McDade, as well as witness, regarded him as an officer. Witness had never

specially deputized CARTWRIGHT.

Horace NASH, for the defense, testified that DAVIS, the deceased, on the day

he was killed, pledged his gun to witness for a loan of sixty dollars, but

took the gun away from where it had been left, and refused either to give it

up to witness or to repay him the money. Witness went to BISHOP, the

constable, and asked him to execute a writ of sequestration, which was being

prepared for the seizure of the gun. The constable said he was too sick to

attend to business, and asked witness to see the defendant CARTWRIGHT. The

constable and witness saw CARTWRIGHT, and the latter went with witness to

the office of COULSON, the justice of the peace, when the writ of

sequestration was issued by COULSON for the gun. CARTWRIGHT took the writ,

and as he was starting off with it, he summoned the defendant John NASH to

go with him, and they two went off on their horses together. The witness at

that time regarded CARTWRIGHT as an officer.

*3 On his cross-examination, the witness stated that he demanded of the

deceased the payment of the money, or, else, the possession of the gun which

he had pledged to witness as security for the money. Witness told the

deceased that if he did not deliver up the gun he would kill him, and at

that time the witness held in his hand a gun of the defendant John NASH, but

he made no attempt to use it. Neither of the defendants were present when

witness told the deceased he would kill him if he did not deliver up the

gun. When witness and the deceased separated, the latter went to the hotel

and got the gun, and the former went to the justice of the peace to get a

writ of sequestration for the gun. The gun had never been put absolutely in

witness's possession, but it was understood between him and the deceased

that it should remain at the hotel and stand good for the money witness had

loaned the deceased. John NASH, one of the defendants, is witness's nephew.

W. R. KELTON, for the defense, testified that he was standing on a scaffold

about breast high, and was engaged in putting up a chimney at the east end

of TOWNSEND's house, which was some fifty yards from where the shooting took

place. Witness first heard one of the parties on horseback say either "hold

up" or "do not shoot." Which of these expressions was used he could not

remember. At the same moment he saw the deceased, in PARIS's wagon, with a

shot gun elevated, and saw him shoot twice. The first shot was directed

towards the man in rear of the wagon, and the second towards the man on the

right of the wagon. Then the witness heard other shots, and judged them to

be from pistols, as these reports were different from those of the two shots

first fired. Witness was certain that the deceased fired two shots first,

and that no shots were fired before them. From where the witness stood upon

the scaffold he could see the deceased plainly; and he saw PARIS take the

gun out of the wagon after the firing. Witness immediately went to where the

firing took place. He examined the gun, but did not take the shells out of

it. He saw that the shells had been freshly exploded or snapped. In all,

there must have been five, six, or seven shots fired. Witness, however, saw

no other person shoot besides the deceased.

J. H. TANNER, for the defense, testified that his attention was first called

by hearing two shots, which, at the moment, he supposed were fired by an old

negro who was in the habit of hunting with a shot gun in the neighborhood.

Directly, however, other shots were fired, and witness immediately went down

to where they were fired. The deceased was humped over in the wagon. Witness

saw Mr. PARIS take up a shot gun as witness approached the wagon. Witness

took hold of the gun. It appeared to have been freshly fired off. Witness

examined it, and saw that the cartridges had been fired or snapped.

Defendant CARTWRIGHT told the witness not to let anyone take the cartridges

out of the gun. Some time in the course of the next day the witness and

several others examined the gun, and in it found two empty shells, one in

each barrel. Witness cautioned persons not to handle the gun, and at night

he put it in a room, and between two bed-ticks, and he was confident that no

one handled it, except in his presence, until the two empty shells were

taken out of it. The reports of the two shots first fired resembled those of

a shot gun, as they were different from those subsequently fired. On his

cross-examination, the witness said he could not see who did the firing, on

account of a room on the end of the gallery obstructing his view.

*4 James TOWNSEND testified that he was not at his home when the deceased

was killed, but returned there shortly after that occurrence. Witness asked

defendant NASH if he had suffered any damage in the affray, and NASH replied

""Only this," pointing to the sleeve of his coat, in which the witness then

saw there were a half dozen or more holes, as if made by shot.

In rebuttal, the State examined W. G. MILLER, who testified that he was

county surveyor of BASTROP county, and, about two years ago, had received a

letter from the deceased's father, requesting him to bring his chain and

compass to TOWNSEND's, where the deceased was killed. The witness went, and,

on the grounds, found not only the writer of the letter, but the then

prosecuting attorney and Mr. William PARIS. Mr. PARIS took the witness to

the spot where he said the wagon was standing when the deceased was shot.

Witness measured the distance from that spot to the chimney at the east end

of TOWNSEND's house, and found it to be one hundred and seventy-two varas on

a direct line. There were no trees intervening directly on the line, but

there were ten or twelve trees at various distances from each other and from

three to seven feet distant from the direct line.

 

Although one committing a homicide by his own wrongful acts produced the

necessity for killing in order to save his own life, it does not follow that

the homicide is inexcusable. Consideration must be given to the wrongful

acts by which the right of self-defense is claimed to be abridged or

forfeited.

 

The right of self-defense is not impaired by mere preparation for the

perpetration of a wrongful act, unaccompanied by any demonstration, verbal

or otherwise, indicative of the wrongful purpose.

G. W. JONES and J. D. SAYERS, for the appellants, filed an able brief and

argument, reviewing the evidence, the charge of the court below, and the

authorities on which they relied for a reversal.

J. H. BURTS, Assistant Attorney General, for the State:

1. The first assignment of error is not tenable. The testimony of W. H.

COULSON, to the effect that he supposed that appellant CARTWRIGHT was a

deputy sheriff, was irrelevant, and not admissible. CARTWRIGHT knew,

himself, that he was not a deputy sheriff, and if he took extraordinary

process to serve, without being an officer, he did so at his peril; and if

appellant NASH accompanied him to serve such process, he did so at his

peril. The testimony offered and excluded did not tend to show that either

of the appellants believed CARTWRIGHT to be an officer clothed with

authority to execute the process, and there was nothing in the testimony to

make it admissible. (Staples v. The State, decided at this term, and

authorities therein cited, 14 Tex.App. 136.)

2. The second assignment of error, viz, "The court erred in not charging the

jury the law of self-defense," is not tenable, and is not sustained by the

record. The court states to the jury, viz: "Upon self-defense or justifiable

homicide, you are charged that any party who is so attacked as reasonably to

produce a fear or expectation of death or some serious bodily harm, the

party so attacked is justifiable in taking the life of the party so

attacking." This was all that the law would justify the court, on the facts,

in charging on this point. And this court will note that the charge was not

excepted to at the time it was given, nor were additional charges asked by

appellant. And it was neither made a ground for new trial, nor was it

calculated to injure the rights of appellants.

*5 3. The third assignment of error is not tenable, viz: That the court

erred in the following portion of its charge, to wit: "You are charged that

any attempt to execute any writ or process whereby property is to be seized

by persons not authorized to execute such process is trespass. There is no

evidence before you that Dave CARTWRIGHT is an officer authorized to execute

such process. A constable cannot confer such authority upon any person, nor

can any magistrate, except in the mode pointed out by law." This charge was

not excepted to when given. But it is correct throughout. There is but one

mode of conferring authority on a private person to execute process from a

magistrate's court, and that must be upon a person of good character in an

emergency. If executed by an unauthorized person it is a trespass, as charged by the court.

There was no evidence before the jury that CARTWRIGHT was an officer

authorized to execute such process, and it was proper for the court to tell

them so. "It is the province of the judge to determine when there is or is

not any evidence as to a certain fact."

Our Supreme court has always held that where there was no evidence to a

given point, the court might so say to the jury. These are civil cases, but there is no

reason why the rule should not apply in criminal cases, as was held in

BURRELL v. The State.

But the charge was not excepted to when given, and being objected to for the

first time on the motion for a new trial, and not being calculated to injure

the rights of appellants, it will not be revised by this court; and thus

this assignment is disposed of.

4. The fourth assignment of error is not tenable, which is that the court

erred in the following portion of its charge: "If you believe from the

evidence that the defendant Dave CARTWRIGHT, accompanied by the defendant

John NASH, if acting with him, were armed, and did undertake to seize, by

virtue of a writ of sequestration, a gun in the possession of B. F. DAVIS,

then B. F. DAVIS had the right to resist such seizure, and using force

enough to prevent it; and if you further believe these defendants, being

armed, did by their conduct induce the said B. F. DAVIS to believe his

property was to be taken, or to kill him, then the said B. F. DAVIS would

have been justifiable in taking the life of the defendants; and if you

believe these defendants were placed under the necessity of taking the life

of said B. F. DAVIS under such circumstances as these, and did so kill him,

then they are not justifiable, but would be guilty of murder."

This paragraph of the charge, taken in connection with other parts of the

charge, and in view of the evidence, is correct. The parties, without any

legal authority, with drawn six shooters, assailed deceased on the highway,

for the purpose of forcibly taking from him his property, which, according

to the testimony of Horace NASH, was rightfully in his possession, and

ordered him to ""hold up" for that purpose. They were not justified in this.

They were trespassers. They were wrongdoers. Deceased had the right to defend his property

and his person to the extent of slaying his pursuing assailants, and it was proper for

the court so to instruct the jury. The remaining portion of this paragraph of the charge

correctly states the rule, where the accused, by his or their own wrong, bring about

the necessity for taking life.

*6 5. The fifth assignment of error is not well taken; which is that the

court erred in the following portions of its charge: "If you believe these

defendants, acting together, without authority of law, to execute a writ of

sequestration, were intending to seize the property of B. F. DAVIS in the

execution of said writ, and if you further believe, though armed, they made

no demonstration thereof, nor performed any act to indicate they intended to

use any arms to secure possession of the property, nor to do any bodily harm

to the possessor, then, if the said B. F. DAVIS, in resisting such seizure,

used more force than was necessary, and resorted to a greater violence than

necessary, and by such violence and use of a deadly weapon threatened the

life of the defendants, or serious bodily harm, the defendants under such

circumstances would not be justifiable in taking the life of B. F. DAVIS,

but would be guilty of manslaughter."

This paragraph of the charge, if not critically correct, in view of the

evidence, inured to the benefit of appellants, and of it they ought not to

be heard to complain; and the cause on that account should not be reversed.

The charge in this respect, however, was in accordance with law. But,

again, the charge was not excepted to when given, and was not calculated to

injure the rights of appellants.

6. The sixth assignment of error is untenable. It is: "The testimony does

not support the verdict in this: 1. There is no evidence whatever that the

defendants or either of them ever attempted to seize the gun or to execute

the writ of sequestration. 2. There is no evidence going to show that the

defendants or either of them made an assault, or indicated an intention to

assault B. F. DAVIS before the said DAVIS fired upon them with his gun."

The record contradicts this assignment in both of the stated particulars. It

was proved that appellants, without authority, took the writ in McDade, and

followed deceased with the intention of seizing the gun; that they pursued

and overtook deceased on the highway, and with drawn pistols galloped or

loped up to him and commanded him to "hold up;" which was of itself an

assault with deadly weapons.

 

7. The seventh assignment, which is "the court erred in overruling

defendants' motion for a new trial," is not tenable. All points raised by

this assignment have been discussed and disposed of. This motion was

correctly overruled.

8. The first special assignment made for appellant NASH is untenable; which

is: "There is no evidence going to show that he knew his co-defendant did

not have the authority to summon him to assist in the execution of the writ

of sequestration." It was his duty to know that his co-defendant had the

authority to execute the writ. But he has no cause for complaint, for the

court fairly submitted to the jury the issue as to whether or not he knew

that CARTWRIGHT had authority to execute the writ, and the question as to

whether or not he engaged in the difficulty. There was evidence that he had

his pistol drawn when first noticed in the difficulty.

 

HURT, JUDGE.

*7 CARTWRIGHT and NASH were convicted of the murder of B. F. DAVIS. The

verdict was for murder of the second degree, the punishment being fixed at

six years confinement in the penitentiary. It being the duty of the court to

charge the law upon every phase of the case presented by the evidence, and

to abstain from charging upon theories not supported by evidence, the

appellants insist that this rule has been violated to their injury, and ask

a reversal of the case because of this error.

Under the facts, or the different phases of the facts, of this case, is the

charge obnoxious to this objection? A detailed account of the facts

immediately attending the homicide is, by W. R. KELTON and J. H. TANNER,

given as follows:

By W. R. KELTON (a witness for the defendants): Was standing upon a

scaffold, about breast high, engaged in putting up a chimney on the east end

of TOWNSEND's house, about fifty yards from where the shooting of the

deceased took place. I first heard one of the parties on horseback say,

either "hold up" or "do not shoot," which I do not remember. Just at that

moment I saw the deceased on the wagon driven by PARIS, with a shot gun

elevated, and saw him shoot twice, first in the direction of the man to the

rear of the wagon and then in the direction of the man on the right of the

wagon; then I heard other firing from what I judged to be pistols, as the

reports were different from the two shots first fired; am sure the deceased

fired two shots first and that there were no shots fired before the deceased

fired; could see the deceased plainly from where I stood upon the scaffold;

saw PARIS as he took the gun out of the wagon after the firing took place;

examined the gun, but did not take the hulls out, but saw they had been

snapped or exploded freshly; there must have been five or six or seven shots

altogether fired; saw nobody but the deceased shoot.

By J. H. TANNER (a witness for defendants): Was sitting on the gallery when

the shooting in which DAVIS was killed occurred; my attention was first

called by hearing two shots fired. I first supposed that they were from the

shot gun of an old negro, who was in the habit of hunting near, but directly

other shots were fired. I immediately went down to where the firing

occurred; the deceased was humped over in the wagon; saw PARIS take a shot

gun up as I went toward the wagon; took hold of it and it appeared to have

been freshly fired; examined the gun and saw that the cartridges had been

fired or snapped; CARTWRIGHT told me not to let anyone take the cartridges

out of the gun. Some time during the next day several of us examined the gun

and found two empty shells in the gun, when I put it in a room at night and

between two bed ticks, and am confident that no one handled it, except in my

presence, until the two empty shells were taken out. The sounds of the two

shots fired first when the killing took place resembled those of a shot gun,

as they were different from those afterwards fired; could not see who did

the firing, as there was a room on the east end of the gallery, and between

the place where the firing occurred.

*8 The facts relied upon by the State are, in substance, these: CARTWRIGHT

and NASH, neither being an officer, left McDade with a writ of sequestration

against the deceased for a shot gun. The deceased, B. F. DAVIS, had left

McDade with said gun, going in the direction of BASTROP, and within a half

mile of McDade he overtook the witness PARIS, who was driving a wagon drawn

by four mules. DAVIS got in the wagon, and when they had traveled about

three miles, and were within about one hundred yards of the house of James

TOWNSEND, CARTWRIGHT and NASH rode up from the direction of McDade, in a

gallop. CARTWRIGHT came up on the right hand side of the wagon; NASH was to

the rear of the wagon. CARTWRIGHT said, "hold up there." CARTWRIGHT had a

pistol in his hand. PARIS then looked around to stop his mules, and the

shooting commenced. Looking back he saw CARTWRIGHT shoot once. There had

been shots fired before he looked around; * * * several shots were fired

from behind his back. Witness PARIS did not see NASH until the shooting was

over. NASH then had a pistol in his hand. Witness thinks there were from

three to five shots fired-- probably more. Two of the shots hit the end of

the wagon bed, one went through his clothing, and another hit one of the

mules. DAVIS was killed in this affray, being shot twice in the body.

The witness PARIS, upon being cross-examined, swore that "he did not

distinguish any difference in the sounds of the different shots;" but his

evidence taken before the examining court being read to him, in which it

appeared that he swore "that there were sounds that seemed different shots

from the pistol," he stated that he would adhere to what he said in his

statement made before the examining court, as it was the next day after the

killing, when the facts were fresh in his mind, and his recollection was

better than now.

This statement, we think, will suffice to present the main facts in the

case, as well as the issues to be passed upon by the jury.

After charging the law applicable to murder of both degrees, the learned

judge below, upon the issue of justifiable homicide, submitted to the jury

these instructions:

"Upon self-defense or justifiable homicide, you are charged that any party

who is so attacked as to reasonably produce a fear or expectation of death

or serious bodily harm, the party so attacked is justifiable in taking the

life of the party so attacking.

In this connection, you are further charged that whenever a party has

produced by his own wrong acts any necessity to take human life in order to

preserve his own life, he can not be excused or justified.

You are charged that any attempt to execute any writ or process whereby

property is to be seized, by persons not authorized to execute such process,

is trespass.

If you believe from the evidence that the defendant Dave CARTWRIGHT,

accompanied by the defendant John NASH, if acting with him, were armed, and

did undertake to seize, by virtue of a writ of sequestration, a gun in the

possession of B. F. DAVIS, then B. F. DAVIS had the right to resist such

seizure, and using force enough to prevent it. And if you further believe

these defendants, being armed, did by their conduct induce the said B. F.

DAVIS to believe that his property was to be taken, or to kill him, then the

said B. F. DAVIS would have been justifiable in taking the life of the

defendants. And if you believe these defendants were placed under the

necessity of taking the life of said B. F. DAVIS under such circumstances as

these, and did so kill him, then they are not justifiable, but would be

guilty of murder.

*9 If you believe these defendants, acting together without authority of law

to execute a writ of sequestration, were intending to seize the property of

B. F. DAVIS in the execution of said writ, and if you further believe,

though armed, they made no demonstration thereof, nor performed any act to

indicate they intended to use any arms to secure possession of the property,

nor to do any bodily harm to the possessor, then, if the said B. F. DAVIS,

in resisting such seizure, used more force than was necessary and resorted

to a greater violence than necessary, and by such violence and use of a

deadly weapon threatened the life of the defendants, or serious bodily harm,

the defendants, under such circumstances, would not be justifiable in taking

the life of the said B. F. DAVIS, but would be guilty of manslaughter.

If you believe that Dave CARTWRIGHT did attempt to seize the property of B.

F. DAVIS under a writ of sequestration, and if you believe John NASH was

present, and honestly believe said CARTWRIGHT had authority to execute said

process, and if in the proper execution thereof the said NASH's life or that

of CARTWRIGHT became reasonably threatened, or some serious bodily harm to

either, did shoot at said B. F. DAVIS to avert and prevent such threatened

danger to himself or to Dave CARTWRIGHT, or if you believe the said NASH was

present, yet if he did not engage therein, you will acquit him."

The first charge cited enunciates a proposition to which we cannot assent.

This is the proposition: That whenever a party has produced by his own wrong

acts any necessity to take human life in order to preserve his own life, he

cannot be excused or justified.

What character of wrong acts must produce the necessity to take life?

Suppose the wrong acts were not calculated to produce the necessity, but did

have this effect? Again, suppose the wrong acts were not intended to

"produce the necessity" by the wrong-doer? Would the party guilty of the

"wrong acts" be guilty of culpable homicide, who, to save his own life,

takes the life of another under the supposed cases?

Just here it is necessary for us to consider the nature or quality of the

act, the doing of which will so far abridge one's right of self-defense that

if he kill another, although to save himself from death or great bodily

harm, he will yet be guilty of a felonious homicide in some of its degrees.

It would be quite difficult to lay down a general rule by which all wrongful

acts could be tested and adjudged sufficient or not sufficient to deprive

one of the complete right of self-defense. This we will not attempt, but

will at present confine ourselves to the conclusions reached by our

examinations of quite a number of cases. From these cases we conclude that

the doing of the following acts is held so far to abridge a man's right of

defense that if he therefore kill another he cannot be acquitted of all

crime:

1. Using provoking language or resorting to any other device in order to get

another to commence an assault so as to have a pretext for taking his life,

or to have a pretext for inflicting on him bodily harm.

*10 2. Provoking another for the purpose of bringing him into a quarrel, so

that an affray be caused. (SELFRIDGE's case, H. & T. on Self-Defense, p.

24.) But in SELFRIDGE's case, though this proposition is stated generally,

it is most clearly stated that no words nor libelous publications, however

aggravating, will deprive one of the right of defense if in consequence of

the same he is attacked.

3. Agreeing with another to fight him with deadly weapons.

5. Going to the place where another is, with a deadly weapon, for the

purpose of provoking a difficulty, or with the intent of having an affray.

The doing of the acts contained in the former illustrations will deprive the

party of the right of a complete or full defense.

There is, however, another very important question presented in the fifth

proposition. Suppose that a person should go armed to the place where

another is, intending to provoke a difficulty, but says nor does anything to

the other at all, or says nor does anything to the other tending to show

that his purpose was to provoke him to a difficulty. Will the intent with

which he went, though nothing said or done by him was intended or calculated

to provoke the other, deprive him of the right of self-defense? By

consulting the cases we will find that there was some act or word done or

said tending to provoke the other.

Let us take the NEELEY case. CASSADY, the party killed, and NEELEY, lived on

adjoining farms, the former with his mother. The parties were not on

friendly terms. The fences around CASSADY's farm were bad. NEELEY's stock

broke through occasionally and were injured by dogs or otherwise. On the

morning of the day of the homicide, NEELEY, believing that his hogs were

being injured by dogs, went with his gun to the field where some children

belonging to the CASSADY family were, and shot the dogs. After this and late

in the afternoon, hogs were again heard in the field, apparently being

worried by dogs. NEELEY hurried there with his gun, and pursued the sister

of CASSADY and the children through the field in the direction of the house.

On their return home, upon telling their story, CASSADY, with his mother and

sister, left the house and went down to the field, having with him a small

rifle. NEELEY in the meantime had left the field and gone in an opposite

direction from the other parties, perhaps a distance of sixty or seventy

rods. The other parties were passing along a path inside of the farm. At

this time, some of the witnesses say that a shot was fired in the field,

while others heard nothing of it. NEELEY, either because he heard a shot or

saw CASSADY and his mother and sister, or for some other cause not

developed, turned and walked back to where they were. When within a few feet

of them, and after a few words had passed between them, the prisoner shot

and killed CASSADY.

*11 According to the testimony of some of the witnesses, who were some

distance off, there was first heard the sharp crack of a rifle, then,

instantly, the hoarser sound of a shot gun, and then, almost as quick, a

third shot like the second. NEELEY fired a small double barreled shot gun;

and the third shot was at a dog, according to some of the witnesses, and,

according to others, at Mrs. CASSADY. The theory of the defense was

justifiable homicide.

Under this state of facts, the court charged the jury that "If the jury

believed, from the evidence, that the defendant brought on the difficulty,

by voluntarily returning to the vicinity of the deceased with a deadly

weapon, for the purpose of provoking a difficulty, his plea of self-defense

would be of no avail, and in that case it would make no difference who fired

the first shot." Under the surrounding facts of this case, this charge was

correct. NEELEY had shot the dog; had chased, but a short time before the

killing, with a gun, CASSADY's sister and the children from the field; and

when he approached them the last time, he did not walk in an ordinary gait,

but "approached rapidly." These acts, leaving out of the case what was said

in the words which passed between him and CASSADY just before the killing,

were not only intended, but were evidently calculated to provoke a

difficulty; and NEELEY could but have known that an affray would be the

result when he rapidly returned with his gun to where these folks were.

BENHAM's case was as follows: SHEPARD, the deceased, was at the creek,

loading sand. BENHAM came up on the opposite side with a gun, and commenced

talking about cattle. He said cattle were troubling him, and if they

continued he would dog them. SHEPARD told him to dog them as much as he

pleased, but not to cross the creek and drive them off with a horse. BENHAM

told him that he, SHEPARD, had shot cattle, and now it was his turn. SHEPARD

told him he had shot no cattle, and if he told him so again he would whip

him. BENHAM repeated that he had shot cattle, and he, BENHAM would shoot

too; and SHEPARD started across the creek towards him. As he was almost

across the creek BENHAM met him with a gun, and pointed it at his, SHEPARD's

breast. SHEPARD sprang out of the water, took hold of the gun to push it

down, and it was discharged into his thigh. This statement is that which was

relied upon for conviction.

In commenting upon the case, Judge DILLON makes this remark, bearing upon

the question in hand: "Nor can the defendant get the benefit of the plea of

self- defense if he sought the deceased with a view to provoke a difficulty,

or to bring on a quarrel;" and he cites NEELEY's case in support.

Here again we find that there was also something else besides going to the

place where the person was, with a deadly weapon, for the purpose of

provoking a difficulty. BENHAM evidently desired a difficulty, and did that

which was calculated to produce one. Hence his acts, coupled with what he

said to SHEPARD, were very properly held to be such provocation as would,

when forced to save his life, defeat his right to a perfect defense to the

homicide committed under such circumstances. But NEELEY's case furnishes no

support to the latter part of Judge DILLON's proposition, to wit: "or to

bring on a quarrel." This proposition is in direct conflict with SELFRIDGE's

case, and if it has any support from any source we have not been able to

find it. As stated, we do not believe it sound. We are of the opinion that

Judge DILLON had reference to the principle enunciated in our first

proposition, namely, "using provoking language," or resorting to any other

device, in order to get another to commence an assault so as to have a

pretext for taking his life. This principle we think sound and just. He who

resorts to such means, or to any means, to provoke a difficulty, with a view

to take the life of his victim, is not only guilty of murder, but murder of

the first degree.

*12 Can this be said of a person who merely goes to another with intent to

provoke a quarrel? We think not, unless the ultimate object or intent is to

take the life of the party, or commit a felonious assault in some of its

grades. In SELFRIDGE's case it was held that: "No words spoken, or libelous

publications, however aggravating, will compromit his complete right of

defense." This should be modified; for we have seen that if the words were

spoken with the intent to provoke an assault for the purpose of having a

pretext for taking his life, he would be guilty of murder. There is a vast

difference between this proposition and that stated by Judge DILLON, to wit,

""to bring on a quarrel." While we might cite a hundred cases bearing upon

this subject, but little could be learned of value so long as the principle

which underlies the whole question is not correctly understood.

What then is the principle? In BROOM's Legal Maxims, page 255, it is said:

"A man may not take advantage of his own wrong to gain a favorable

interpretation of the law. He seeks the law in vain who offends against it."

It is upon the plain principle, said WRIGHT, Judge, in NEELEY's case, "that

one can not willingly and knowingly bring upon himself the very necessity

which he sets up for his defense." It would follow, therefore, that the

conduct of the party must show that he knowingly and willingly used

language, or did acts which might reasonably lead to an affray or a deadly

conflict; and that something besides merely going to the place where a

person slain is, with a deadly weapon, for the purpose of provoking a

difficulty, or with the intent of having an affray, is required in order to

constitute such wrongful act. But it is not necessary that the additional

acts or words should be done or said at the time of the homicide. (NEELEY's

case.) The former conduct of the defendant towards the party slain, with all

of the attending circumstances occurring before, and in connection with the

fact that he went to the person slain, and his language and bearing toward

him at the time of the homicide, may, and frequently do, constitute that

character of provocation which estops defendant from pleading the necessity

which otherwise could be interposed.

 

But, reduced to the exact proportion of this case, the question is this:

Suppose that a party without authority, not being an officer, rides rapidly

up to another, with pistol in hand, intending to take his gun or other

property by virtue of a writ, but says nothing, nor does any act, tending to

show an immediate intention to execute the writ; will he be denied the right

of defense, if he kill to save his own life? Will the fact that he thus

approached the other, with pistol in hand, compromit his right of complete

defense? He is armed, has the intent, and rapidly approaches, but says

nothing nor does any acts tending to show the immediate intention to

consummate the wrongful act.

*13 Bearing directly upon this question, Mr. BISHOP says: "Between

preparation for the attempt and the attempt itself there is a wide

difference. The preparation consists in devising or arranging the means or

measures necessary for the commission of the offense. Attempt is the direct

movement towards the commission, after the preparation is made. To

illustrate: A party may purchase and load a gun, with the declared intention

to shoot his neighbor, but, until some movement is made to use the weapon

upon the person of his intended victim, there is only preparation and not an

attempt."

"The movement to use the weapon upon the victim need not be the last

proximate act prior to the consummation of the offense. If it be the first

of a series of steps towards the execution--a commencement of execution--it

will suffice."

Now it must be borne in mind that there was no prior conduct or previous

difficulties or ill feeling between any of these parties, connecting itself

with the acts immediately attending the homicide, as was the case in the

NEELEY case. Hence, can the acts of these defendants at the time of the

homicide, without color from any other source, be held such provocation as

will deprive them of the right of defense? Are they such acts (standing

alone) as will in law have this terrible effect? Are defendants or either of

them by these acts to be adjudged felons, although they took the life of

DAVIS to save their own? We think not.

As before intimated, immediate acts must condemn; for there is a perfect

want of any other acts, malice or bad blood. In fact, it was the merest

accident that CARTWRIGHT was sent with the writ, or that NASH was summoned

by him. DAVIS did not know that they had the writ, but from his position in

the wagon and the manner in which he constantly held his gun, he was

evidently expecting some one in pursuit. And just here it may be observed

that his attitude in the wagon, and the position in which he held the gun,

may very satisfactorily account for CARTRIGHT having out his pistol.

There being no such provocation as would compromit defendants' right of

defense, and there being no attempt to execute the writ, was it proper for

the learned judge below to assume in his charge these phases of the case? We

are clearly of the opinion that it was not. The evident effect of such a

course is to impress the jury with the belief that the acts of defendants

were such provocation, and also that their acts constituted an attempt to

seize his gun. With such belief the jury could not have consistently

acquitted defendants or either of them. If these defendants, whether

officers or not, charged down upon DAVIS and commenced firing upon him, they

are guilty of murder at least; and if the jury so believed, they should have

convicted them of such offense. But, on the other hand, if DAVIS commenced

the battle, and defendants fired in their complete self-defense, they should

not be convicted, and the jury should have been told so, untrammeled with

any such condition as was done in this case.

*14 We do not think that the other assignments relied upon for a reversal

are well taken. For the errors in the charge of the court, the judgment is

reversed and the cause remanded.

Reversed and remanded.