The Texas Republican. [volume] (Marshall, Tex.) 1849-1869, 1854-06-17
DECISION or THE SUPREME COURT


4 (
10 reverse the judgment oil convection
Il Is urged that the court enormously en-
claded evidence proposed by the accused
: and also that there is error IN the charge
OF tho court
The attorney Tor the State had asked a
witness how the accused was equipped
us he rode into Jefferson with the witness
on the morning of the day Of the killing
10 which the witness answered that "he
had pistols tied to his saddle. and the de-
!enco thereupon proposed 10 prove by the
witness that the accused uttered no hos
tile expressions about the deceased aud
spoke Of no difficulty with any Que "
which, upon obJec,ioa, the couf, excluded (,
aud this IL assigned as error
The attorney Tor tic state had uui guess
TONED the witness AS to any statements or
conversations ci the accused on that occa
son. And vet II is insisted that the nc /.
cused had the right to prove that he did
not at that time use threatening language,
or give eNptossioa to any hostile intentions
toward the deceased The proposition
was to prove what the accused did not say,
when there had been no question asked as
to what he did say. II is scarcely uecessa
~ 10 Say that patty could not thus make
evidence for himself; that the testimony
proposed was Irrelevant, did not couduce
( 10 prove any fact pertinent to the issue,
was no part Of the res gesiG nor Of u
+ conversation drawn out by the eNamlua
ton on the part OF the state and was
+ very clearly ,nHdmissible.
i Other similar questions upon the Hdm,s
ibl,ity OF tie evidence we've reserved, but
they are not deemed OF a character to re.
qulrc more particular notice. Aud, indeed,
, the ouly matter presented by the record
! which does require notice, is that part OF The
I charge OF tho court which Is complained OF,
/ IN whi.h the court treated of the effect oi
/ the previous threats of the deceased On
/ that subject, the court charged, that /" ii
{ the defendant not being moved by a week
ed aud malicious iutrnt, but from a Just
aud well grounded apprehension. for the
/ preservation Of lis own life from "A threats
eued attack from the deceased, inflicted the
mortal wound bv which death ensned. then
he is guilty OF murder in the second degree
and not murder IA the frs, degtce
Il, threatened attack " It Is evident
! the court meant the previous thfoats OF tlr
deceased The Judge could have meant
/ aud the jury could have understood him to
mcan nothing else for there vas uo pros
tencs OF az attack OF threatened attach 10y
the deceased at the time OF the killing
+ DWcsted ol the peculiar phraseol0gy which
ohscurcs Is meHnug--that IT, the express
lnus not IRON wicked ard malicious ,u-
/ teut, well grounded apprehension. and
oncc to lie asI tSSiNnc snS we've" ~. ''''
osltiou which this ehNga announces "a,
that previous threats, oi Themselves, and
uncontrolled with any manifestation at the
time Of the killing @, Az intention 10 carry
them Into immediate execution. viii eStru
uate the crime aud penalty OF wiiiiul,
pfcued,tatcd aud delibefape hp,niv,ds', o...i.-
n,ittod ~ cold blood, by one laying "a walt
nntposelv 10 take the lite OF his adversary ,
II the motive which ac,uatcd thc SLAYER
WAS the preservation OF his own liio from
iuiui,, aud OF course contingent danger,
appfehendoJ by violence from the deceased.
pr Ia other wufd,, that hato, naked threats
uuronuoctrd with acts. may eNcnunlo aud
reduce the crime of murder, committed Nv
+ a premelu ted aud deliberate ktliNg.
+ which the statute defines to he murder ia
the inst degree. to murder ~ the second
degree
The annuncatton OF such proposition
from the Bench Is oalcu!et.d to arrent at
teutiou. And It il natutal to inquire upon
what principle ii is tina, this effect is ms
cnbcd to previous Threats. II cannot hc
on the ground that they constitute what The
law deems a sufficient pyouoeai,oa 10 exon
crate the guill OF homicide, For that can
never be where the killing is deliberate, ot
of cool purpose. That IS the indulgence =
which the law extends to the hfsi transport
oi passion, 10 condesccnslou to human ~
itmity TO ti,e t,lgor bferis, winch while tho
lron1, lasts rcudefs man deaf to the
voice Of reason Aud =" II Is the nature OF
the provucation ANA not tho farre ffsci OF
i, on the mind of the prisoner which The
law regards" t2 stark Nv 122 There
fore, mo anron, by bare words or gestures
however false or malicious and eXsgcefa'
ted with the mos, provoking circumstances,
will fee the party killing from the guilt ct
murder" u Russell on c. $40 where
such provocailon does not ioiu,sriai"it head
to blows, or mutual conha, III winch tho
homicide ensuo. Id. 52T Wharf Ana
Or. l.. 237, 23>.1 Aud the plea ct pro
vocation will IN no case avail, wher" theie
is evidence of express malice Russell on
c. 520l aud it does not appear that tho
patty killing acted upon such pfovoea''oh
For IN all eases Of provocs,ion IN order 10
hat