Herrin v. State ( 1871 )

Walker, J.

This case is an appeal from Lamar county, on a writ of habeas corpus, granted by the Hon. Hardin Hart, and tried before him on the application of the prisoners for hail before indictment found.

The prisoners had been previously committed to the enstody of the sheriff by a justice of the peace, after an examination held on the twenty-sixth day of May, 1870, upon a complaint presented against them, charging them with the murder of one Oliver Irvine, on the twenty-first of May, 1870, and the evidence there given is that presented to us by the record.

It substantially states that the deceased, Irvine, iu company with one William H. Bridge, were riding out upon a hunting excursion, when they were assailed by three men, who came from the bushes into the road, and ordered the deceased and Bridge to half, or they would shoot them, and rode up to within a few yards of Irvine and Bridge.

The evidence discloses that two of these men were the appellants, in -company with one Abe Herrin, and that they were strangers to Irvine and Bridge. Irvine carried a pistol, a revolver, and Bridge was without arms.

The advancing party demanded Irvine’s pistol, and after some parley directed Bridge to take it and lay it on the ground, which he did ; and Bridge testifies that during this time one of the appellants shot Abe Herrin, after cursing him for not keeping his pistol in his hand. The evidence of this fact is somewhat obscure, and it is not necessary for us to farther consider it, as Abe Herrin is not a party to the record, neither do the appellants stand accused of shooting him.

' Abe Herrin accused Bridge of shooting at him, and pursued Bridge a short distance into the bushes, firing several shots at him without effect, when he, Herrin, abandoned the pursuit.

About this time Bridge heard four shots in the direction of the place where he had separated from Irvine and appallants, and heard a cry, which he thought that of Irvine.

Nothing more is known of Irvine until a few hours afterward, when a search was made and his dead body found lying near where Bridge had separated from him, pierced with four bullets, two of which passed through the brain.

His pistol was found by the road side, and two barrels of it empty. Some seventy yards distant, .Abe Herrin, was lying wounded. Other details are given, not necessary to be here considered.

The appellants insist that the proof is not evident, neither the “presumption great,” to connect them with the killing; and farther, that the evidence does not show murder in the first degree.

Brom the evidence in the record, we are at no loss in connecting the appellants with the homicide.

The deceased, when last seen alive, was in their custody; they had already drawn pistols and threatened to shoot, and while the witness Bridge was still near, four shots were fired, corresponding in number with the wounds found upon the body of Irvine.

It is not shown that Irvine fired any shots at all, and if he did fire the two charges missing from Ms pistol, the circumstances leave the inference that it was done in self defense.

These facts are not weakened by the showing that the appellants made no effort to escape.

The many instances in which parties, guilty of homicide, act-in this manner seem to induee the belief that they regard it as an atoning merit. Added to this, they not unfrequently boldly declare their murderous aets; and to their declarations, with a most diabolical cunning, add some explanation whereby to gain advantage of the law.

If tbe killing was minder in tbe first degree, the prisoners were mot entitled to bail. By our statute, “ all murder committed * * * with express malice is murder in the first degree.”

Express malice is a deliberate intention of doing bodily harm to another, not authorized by law. • (1 Hale, P. 0., 451.) This is the common law definition, and has been adopted in prior decisions of this court.

The statutes of most of the States express substantially tbe same meaning by the words “ deliberate, premeditated killing.”

Was there in this case a deliberate, premeditated design upon the part of appellants to take the life of Irvine ?

The evidence shows that the violence was inflicted with deadly weapons, and in such a manner as leaves no room to doubt that death was intended; that they considered of what they would do, and then did it.- ■

It is not shown that Irvine offered any provocation which could reduce the offense to one of inferior degree.

The attempt to get possession of Irvine’s pistol had occupied some fifteen minutes, which was abundant time for the parties to reflect upon what they intended doing.

It is not necessary that the deliberate, premeditated intention ' should he formed and matured prior to the occasion at which it is carried into execution.

If this intention is executed the moment after it has been formed in the mind, the offense is the same as if it had existed for a much longer time. (Jordan v. State, 10 Tex. R., 479; Mitchem v. State, 11 Ga., 615; Green v. State, 13 Mo., 382.)

In a Pennsylvania case Chief Justice Lowrie said: “ The deliberation and premeditation required by the statutes are not upon the intent, hut upon the killing. It is deliberation and premeditation enough to form the intent to kill, and not upon the. intent after it has been formed.” (Keenan v. Com., 8 Wright, Pa., 56.)

Judging from such evidence as the record discloses, we think the district judge committed no error in refusing bail. The judgment is therefore affirmed.

Affirmed.