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.