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SUPREME COURT RECORDS PAGE
8
File contributed by Lisa Lach and
proofed/formated by Dena Stripling 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. **457 *665 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. Simms v. State, 10 Tex. App. 132, and
authorities cited. 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 *666 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. POTTS v. STATE. 14 S.W. 456, 26 Tex.App. 663 END OF DOCUMENT ================= 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 w ere 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. (Code Crim.
Proc., Art. 685; Maddox v. The State, 12 Texas Ct. App., 429.) *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. (Rev. Stats., Art. 1571.) If
executed by an unauthorized person it is a trespass, as charged by the court. (Erwin et
al. v. Bowman, 51 Texas, 513.) 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." (Burrell et al. v.
The State, 18 Texas, 713.) Our Supreme court has always held
that where there was no evidence to a given point, the court might so say to the jury.
(Parker v. Leman, 10 Texas, 716; Bond v. Mallow 17 Texas, 636.) 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, above cited. 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. (Grant v. The State, 2 Texas
Ct. App., 167; Maddox v. The State, 12 Texas Ct. App., 429.) 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. (Ross v. The State, 10 Texas Ct. App., 455; Erwin et al. v.
Bowman, 51 Texas, 573.) They were wrongdoers. (Staples v. The State, 14 Tex.App. 136.)
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.
(Penal Code, Arts. 572, 573, 574, 575.) 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. (Gilleland v. The State, 44 Texas, 358.) *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. (Jenkins v. The State, 1 Texas Ct. App., 346.) The charge in
this respect, however, was in accordance with law. (Penal Code, Art. 597, subd. 2.)
But, again, the charge was not excepted to when given, and was not calculated to injure
the rights of appellants. (Code Crim. Proc., Art. 685; Maddox v. The State, 12
Texas Ct. App., 429.) 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. (Penal Code, Arts. 484, 485, 496,
subd. 8, 9.) 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. (Stewart v. The State, 1 Ohio, 66; Adams v. The People, 47 Ill.,
376.) *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. (State v. Hill, 4 Dev. & Batt., 491.) 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 State v. Neeley, 20 Iowa, 108; The State
v. Benham, 23 Iowa, 154; Vader v. Commonwealth, 12 Gratton, 717.) 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." (Bish.
Crim. Law, vol. 1, 764.) "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." (Id.) 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. Tex.Ct.App. 1883. D. CARTWRIGHT AND J. NASH v. THE
STATE. 14 Tex.App. 486, 1883 WL 8943
(Tex.Ct.App.) END OF DOCUMENT ========================== 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. (Code Crim. Proc., Art. 685; Maddox v. The State, 12 Texas Ct. App., 429.) *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. (Rev. Stats., Art. 1571.) If executed by an unauthorized
person it is a trespass, as charged by the court. (Erwin et al. v. Bowman, 51
Texas, 513.) 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."
(Burrell et al. v. The State, 18 Texas, 713.) Our Supreme court has always held
that where there was no evidence to a given point, the court might so say to
the jury. (Parker v. Leman, 10 Texas, 716; Bond v. Mallow, 17 Texas, 636.) 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, above cited. 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. (Grant
v. The State, 2 Texas Ct. App., 167; Maddox v. The State, 12 Texas Ct. App.,
429.) 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. (Ross v. The State, 10 Texas Ct. App., 455; Erwin et al. v.
Bowman, 51 Texas, 573.) They were wrongdoers. (Staples v. The State, 14 Tex.App. 136.)
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. (Penal Code, Arts. 572, 573, 574, 575.) 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. (Gilleland v. The
State, 44 Texas, 358.) *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. (Jenkins v. The State, 1 Texas Ct . App., 346.) The charge in this
respect, however, was in accordance with law. (Penal Code, Art. 597, subd. 2.) But,
again, the charge was not excepted to when given, and was not calculated to injure the
rights of appellants. (Code Crim. Proc., Art. 685; Maddox v. The State, 12 Texas Ct.
App., 429.) 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. (Penal Code, Arts. 484, 485, 496, subd. 8, 9.) 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. (Stewart v. The State, 1 Ohio, 66; Adams v. The People, 47
Ill., 376.) *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. (State v. Hill, 4 Dev. & Batt., 491.) 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 State v. Neeley, 20 Iowa, 108; The State v. Benham,
23 Iowa, 154; Vader v. Commonwealth, 12 Gratton , 717.) 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." (Bish.
Crim. Law, vol. 1, 764.) "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." (Id.) 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. Tex.Ct.App. 1883. D. CARTWRIGHT AND J. NASH v. THE
STATE. 14 Tex.App. 486, 1883 WL 8943
(Tex.Ct.App.) |
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