The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-23
JUDICIAL REHESTS.
Abstract of Cases Decided by the
Court of Appeal.

tCOurC OF Appeal
Anderson vs.. the state, from Scurry
county; affirmed.
Motley d. Co. vs.. Semms d Co, from
Dallas county; dismissed.
Motley g. Co. vs. Derby g. Day, from
Dallas county; affirmed.
White VS.. the State, from Collin county;
reversed and Dismissed
Bean VS.. the State, from Coryell county
affirmed.
Dalton VS.. the State, from Gillespie
county life sentence); affirmed.
Bird VS.. the State, from Wise county;
reversed and remanded.
Bower VS.. the State, from Llano county
affirmed.
McDade vs.. the State, from Harris
county Change venue); affirmed.
In the McDade case the appeal is from
judgment of conviction for murder of
the second degree and eight years SEN
tence to the penitentiary on account of
the killing of S. W. Allchin, at Hem psteRd,
in Waller county, which excited 80 much
attention in the press at the time. In the
course of the opinion of the court of ap-
peals, as prepared by the presiding judge,
White, the opinion states that it Is an un-
controverted fact that the appellant and
one Dick Springfield shot and killed S. W..
Allchln, as alleged in the Indictment.
This appellant does not deny, but claims
that he was justifable, or, at most, that
his offense did not amount to murder, but
was manslaughter. No i-sue of man
slaughter was submitted on the trial be-
low, and the omission of the charge in
this regard is insisted upon as radical
error.
About a month before the day of this
homicide Allchin had killed one Chambers,
a relative of the appellant and deputy
sheriff of Waller county. Appellant and
Springfield were also deputy sheriffs. Out
of the killing of Chambers by Alchin
bitter feud resulted between Allchin and
the McDades, or sheriff's party. A truce
was finally agreed upon, in which it was
stipulated that Allchin was not to go to
Hampstead with his Winchester rifle in his
hand, but was to carry it in his buggy or
in the holster or scabbard on his saddle
when he was on horseback, and that to
carry it IN any OTHER way was to be CON
sidered by the other party as declaration
of hostility. None of the McDades were
to modest him. There were several rup-
lures of the agreement by Allchin, which
were known to defendant, who, few days
before the killing, received written notice
from Harvey that Alchin would be in
town with friends Saturday to kill de-
fen dant.
The evidence shows threats upon the
part of Allchin against defendant, some
communicated and others not. The cir
cumstances of the killing on the fatal
Saturday are recited by the court. All
chin did not fire a shot from his rifle,
which he had with him, and it does not
appear that he even saw the parties or
could have seen them till they fired upon
him, as he was sitting upon his horse with
his back to them at the time. Evidence
was adduced by appellant tending to show
that he and Springfield went from
Wheeler's saloon to Haverman's corner, in
the manner they did and armed as they
we're, to arrest fugitive Desperate and
murderer from Montgomery county, for
whom they had a warrant and who was re-
ported to them as having been seen at or
near Haverman's corner just before they
armed and started by the alleyway from
Wheeler's, and that their seeing Allchin
when they reached Havermsn's corner was
sudden and wholly unexpected.
Suppose, for arguments sake, in the
face of facts to the contrary, we concede
this, the court asks, could his mere pres
enoe, with his back to them at that, un-
accompanied by simple hostile word or
act, save that he had his gun across his
lap, have aroused in the mind of a person
of ordinary temper any of the emotions
of the mind calculated to render it in
capable of cool reflection? But it is said
Allchin, having his gun in his lap and not
ID his gun scabbard, was, under his own
agreement, an overt act of hostility, as
much SO as if the gun were directly drawn
and presented upon them. If such had
been the spirit and intent of the agree
ment as between the parties, the law, the
court says, could not afford to tolerate,
much less recognize, doctrine SO
variant from and at war
with every principle it maintains
for the welfare of society and
the protection of human life,
and cannot sanction or miti-
gate the taking of human life under such
pretext. Because it was so nominated in
the bond" could neither justify nor miti-
gate or excuse it, if in contravention of
the law The law cannot and will not per
NIT men to kill each other with impunity,
notwithstanding they may have bound
themselves to that effect with each other
by the most solemn obligations. This
court holds, consequently, that the court
below did not err in declining to submit
in the charge to the jury
the issue of manslaughter as an
issue in this case. The charge, as
to the law of self defense, was sufficient SO
far as the facts raise that issue. The
judgment is affirmed.