Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-06-27
HIGHER COURTS
: syxopsEs OF DECISIONS As
HANDED DowN.
..sering Of the state Courts Of
80 Resort in Cases Taken Up
an Appeal from the Lower
tribunals OF Justice.

lanai appeals hanuel down the fol-
~ decisions in the case OF II. II.
'sssr, vs.. the State today:
..,e,laut was convicted OF murder IN
,.,eoni degree and his punishment as.
IN At twelve years,
ar Is but one question in this case
,hat ls. whether the evidence sun
=. conviction Of murder in the sec.
4 degree.
uhus passion and want OF premedita.
NAV Characterize both murder in the
Ia degree and mans.aughter. We, they
]. clearly TO be distinguished by the
4. leading to the homicide. II the
- IS such as will be reasonably cal
ated to rouse the passion OF man,
ordlnary temper and render him
..pable Of cool reflection, It is
1sned an adequate cause. and where
Sd calculated, the cause is deemed
s.ouste. homicide c5mmi.ted under IN.
1lenoe Of passion sprlnging out Of the
4 Cause can never be greater than
X.sslaughter,
Il ID not generally a matter OF difficult
rp determine when the cause IS ade-
~ or Inadequate. The code mas char
dedned the test. l.. @. 5G and 5q6
question generally Is as to the exis-
rlel1e. Unless tine passion exists. 1t
In be MURDER even though there be
adequate cause. Where time olApses
saeen the happening OF the cause and
/. homicide, the existence Of the pas
II becomes natural subject OF In
IN but where the blow follows quickly
= III cause and there Is an abs nee
prsmeditation or any other motive
n ~ he existence or the passion may be
kssred from ene homicide itself as a
Xs,dmptlon Of fact. The record shows
IN the appellant got Into AN angry
4 Creation with hickman. Iease Hls.
Enpanlln Of appellant had hired ihe
In add that both had been riding about
Is city that night Appellant wien
Mlei for the money, requested ~ hack
d to call n the morning. HIS com
Xslon according TO the states witness,
Ia absent when the hickman demanded
IN He declined TO call IN the morn
n and insisted on being paid at once,
~ left the saloon where the alterca-
| q took placei stating mat he would
4 biz money II WIS stated In argu-
IN that IN San Antonio, hackdrivers
1, arrest parties, who refuse TO pay
IN under an ordinance OF that city.
ae.lant followed him out on the side
IN and the parties stood facing each
IL. Appellant. asked the hickman.
los long ala you have lne?' and the
.fnan answered from 7.30 and that
BIZ was four dollars Appellant re-
va "ho WAS d--n lying SIN OF a
I-n" As soon as the words were
hen. tho deceased, who was standing
IN by rushed upon appellant, CRYING,
X1sat Is too much Cor a cripple to taker'
lNfrl backed away along the wall
y fred and Killed the deceased. 1t is
An that as deceased rushed upun ap-
SAa, he took hold OF the lapels of
own coat as II to throw II on. De-
mn m strength to appellant and had
ta shortly before pointed out TO APP
11t as dangerous character, who
n been IN frequent serious difnculf as
L evident there was no previous III
d between the parties. II does not ap-
sr that they had ever spoken TO or per-
say knew each other. ] Is not shown
.si al the time Of the difficulty appel
r had any reason 10 apprehend an at
III from the deceased. Nor was the APP
Msant about 10 attack the crippled
ltkman, Rudder, but It appears without
xxadiotion that the deceased, reused
u sudden Indignation at what he re-
Xftsi as an insult 10 crippled man,
nAed upon appellant with the purpose
Ebatng him tGarello w. State n Grim.
Etpris) The attack was Il surprise 90
= Eeiant. who, rapidly retreating back
lXtinis fired to prevent the onslaught
~ State witness, Rudder, says VIII
H)aper rushed at him Child ars back
rly. but was stopped by the wall, hi b,
slked Sideways along the wal seven or
Nal feet Here, then, We have IA case
UAoNlng no generalization, no previous
rdAse or aflimosity against deceased.
~ q homicide TO protect his person
isn the person killed was In the very
~ q making an unlawful and Violent
eack Now. while II may be true that
uti Attack may not have been Of such a
ifscler as would Justify the homicide,
~ " to say, 1t may not hape baen
Eisgh as would produce a reasonable eN-
eaatiln u death or serious bodily in
In o. C.. art. 57i,) stlll It's violence and
Hliicnness and the surrounding clrcum
Hrlnees In our judgment. presents an ad-
s.Aie cause. Concede that appellant
Ufts Wrung In cursing the cripple, Jesse
U-saler, he was not, therefore hound to
ntnft TO be beaten and bruised by an
UTaged antagonist, his superior w
rcgth. voluntarily interfering fl, the
a.lfy. but to chastise another for In
uLtng him. The code declares that an
XsAnlt and battery by deceased, causing
X.m or bloodshed, Is an adequate cause
~ G., $50, and there II no question ina
pa the bow been actually given Il would
'iFe been adequate cause under the
sris Of the code. Adequate cause ~ moi
riied 10 the grounds stated. II ~ no.
ssays necessary that the blow be be aelu,
" struck, and as was said In william
~ o. {. A., $40, bodily pain Is not nn,
Xtmtely essential 10 adequate cause ~
nAtflaughter, but any CIRCUMSTANCE q
a3dliion which Is capable OF ereatlng
" does create, sudden passion, as anger
Eten resentment or terror, RENDERING
q mind Incapable OF cool reflection
U,ttther accoInpa nied by bodily pain q
. adequate cause (P, g. 6sDi wac
nstcn case, 10 G. A.. 274) And IN tbs
b. At bar the suddenness and fierce
rs o. the attack by such a man as De
Ased Il shown TO be, and appel ant
.sV retreat to the wall ana men slus
U'als along the wall In avoiding the al
lck strongly suggest not only a wan
n premeditation and cool reflection, hu
z homicide was the result OF an error,
Protect himself from injury. The eNl
Mttce shows that the nature OF the at
fS was such that a bystander in N
Xi'1t door OF the hotel, watching TN
lnrrel. when the rush took place, moNe'
akNards out Of the range ana slBht Q
parties, and not on account OF appfii
~ Tor his back was tcWards the WI
~ And this fact was earnestly. presse'
UfNp our consideration by counsel In ora
Uftnment. Again. the testimony Tor IN
,7tnse. which seems TO be eorrobolatt,
me evidence OF states witness, kul
LII. given In the first trial. shows that q
Uht the quarrel between appellant an
-aler had been settled for the night an
n parties had turned away from eac
ief, and appellant had started 10 &
Lay NE hotel, when deceased became sud
sr angry and excited and ran upon n
t-t1oant saying III you want 70 nFh
man light me you son OF a D.; ina
slsiander tried to atop him Narnln
~. appellant had q gun. but ne was w
e 70 hold the deceased Under n
.cis ard law OF the case we are Of II
tllqn that there was O provocaupi
appellant acted Immediately npo
M pfcyoeatlon, and upon no other me
~ and L. guilty OF no higher degree
uyable homicide than mmnalaughte
I-fmtfit reversed and cause remaHde'
1kins. ].
tstracts from the argument for d.
u.lant by william Aubrey. Esd.
~ " State vs.. childers, before IN
NeN q anneals al Austin. May p, 1891;
as,rs On Shaa ,Rs sih u sPi No Ssss ~
h. me Sidewalk IN front OF the Menst