Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-18

feel that our whole duty viii not be dis
charged without the consideration OF
other propositions urged in argument.
So far as the facts are disclosed in thu
record, but two witnesses were examined
who were actually present at the homi
eide. One of them, John e. Witt, wa;
assailed upon the trial and shown, BY
various witnesses, to be unworthy OF
credit on oath in consequence of his gen.
eral bad character. Other witnesses, who
were related to him, or otherwise preju,
diced in the cause, sustained his credit,
and, upon this state of proof, such a
doubt is thrown upon his testimony that,
while we do not hold he Is utterly uu-
worthy of credit, we do not feel called
to analyze his statements, al hough We
will advert to some of them, or TO state
how far he is corroborated, ard leave the
question of his credibility to be deter
mined by the jury, under proper
instructions from the Circuit Court.
For the purposes of this opinion, the
facts of the case may be stated upon the
| evidence of Levi w. Wood, the othtr
witness, whose credibility is fully sus-
| tanned. His statement is as follows:
s'Thomas Mcbride and James Sparkman
were playing cards for pistol, Mcbride
said he was seven, Sparkman said they
were six and six. Then Sparkman got
up and started off, and said Mcbride
would not play fair game, Mcbride
said he would play fair game, Spark
man started to his house, Mcbride took
up his pistol and cooked it and pointed it
towards him and told him to come back,
Sparkman said he would not, Mcbride
said he would make him, Mr.. Sparkman
came back and took Mcbride by the
bosom of his shirt and by the arm, Mr..
Mcbride called for Lot and said-come
here, Lot The pistol went towards Lot,
who picked it up and stood little while,
with the pistol in both hands, and then
shot him. "The parties had some liquor
that day. Sparkman was not drunk, Lot
s. Anderson had been drinking, but was
not drunk"
Other witnesses prove that although the
plaintiff in error is neither an idiot nor a
lunatic, he is youth, sixteen or seventC en-
years of age, and Of dull and feeble intel
lect. 1t is also known, that he was either
intoxicated or drunk at the time of the
homicide.
The statements of Wood and Witt,
the lmpeached witness, are similar as to
the leading facts but both are
singularly defective in not detailing the
particular circumstances which attended
the direct act of shooting, how far the
parties were from each other; whether
they were standing or sitting; or were
directly face to face, the particular man
ner in which the pistol was held; whether
it was aimed or pointed at the deceased;
whether the plaintiff in error held both
hands near his person, or extended them
so as to indicate deliberate, or momen-
tary, purpose to fire; and other particulars
which might elucidate the transaction and
show whether the homicide was scciden-
tai or intentional, are not stated. Witness
says after Mcbride presented the pistol
and ordered Sparkman TO come back,
''Sparkman then came right back and
caught Mcbride by the breast of the coat
and knocked, or jerked the pistol out Of
his hand, and threw or knocked it on the
ground, Mcbride caught him by the col
lar of the coat Sparkman pushed Nc
Bride back on a still tub, when Mcbride
said l have nothing against you, Spark
man said, l have nothing against you, Nc
BRIDE said come here Lot and get my
pistol and help me. Lot picked up the
pistol and shot Sparkman in the right
shoulder. Then Sparkman walked
around one or two still tubs to where l
was and said, John, l am shot, etc. The
witness says that at first, hep paid no atten-
ton to Sparkman, 'for Thought he was not
hurt much on account of the way he was
standing and the way he was shot," bat
does not describe how he was standing
or 'the way he was shot" He says
further, that "when the pistol fell out of
McBride's hand, it fell towards where
Lot Anderson was" Both witnesses
state that the pistol was cooked when
Mcbride presented 1t at Sparkmsn and
ordered him back, and there is no proof
that its condition was changed when it
was picked up by the plaintiff in error.
1t does not appear that there was any
previous unkind feeling between the
plaintiff in error and the deceased, or one
word of alteration before The fatal re-
suit. If the plaintiff in error shot the
the deceased by desigl and a. the com
mand of Mcbride, the verdict of the jury
was merciful. If he shot without inten-
ton, without aim, without the concur
renee of his own will, and by accident,
either in picking up the pistol, or in at
tempting to let down the hammer, he
was guilty of no offense. If he really
committed crime, no motive is shown
for its commission unless the statement
of Witt is to be credited and it shall be
inferred from that statement that his OBJ
iect was to aid his friend Yet it is diff
cult to determine what the true motive
was, if indeed there were any motive,
where it seems that Mcbride and Spark
man had mutually stated that they had
nothing agalns: each other, and the re-
cord does not show whether it was before
or after this apparent reconciliation that
Mcbride called upon Lot, the plaintiff in
error, to get the pistol and help him.
Upon the fsc;s detailed in the record,
we are not satisfied, beyond reasonable
doubt, that the verdict of the jury is cor
rect and as it is manifest that fuller ex-
animation of the circumstances attending
the homicide will shed light upon the
whole transaction, and establish more
satisfactorily the gull. or innocence of the
plaintiff in error, it is due alike to the
public and to him that a demonstration
shall take place. This is the more neces-
sary as the charge of his Honor may, in
some respects, have misled the jury. 1t
is to be regretted that the practice has so
long prevailed in this State of sending in
diclments for murder in the first degree
in all cases of homicide. There are mapy
cases in which it is manifest that the
| offense, when tiled, will amount to moth
ing more than manslaughter or murder in
the second degree and there is no reason,
under our statues, why the indict-
ment may not approach nearer to the
facts of the case and be sent for murder
in the second degree or for manslaughier.
When the bill is found for murder in the
first degree, The case, prima facie, is not
bailable and much trouble and expense
are often incurred in making a prelimi-
| nary inquiry as to whether the accused
shall be admitted to bail and such investi-
cations, being public, often make it diff
cult TO select juries in the counties
where they occur. Another difficulty is
that as the indictment embraces murder
in the first and second degrees and volun-
| taIy as well as involuntary manslaughter,