Wallace v. State ( 1886 )

Willson, Judge.

The defendant, jointly with John Kennedy and .G. W. Miller, was indicted for the murder of George W. Taylor. He was tried separately from his co-defendants, and convicted of murder in the first degree, the punishment assessed being confinement in the penitentiary for life.

The murder was committed on the night of the 15th of March, 1884, in Cherokee county, Texas, some four or five miles from the town of Husk. The facts relating to the crime, briefly stated, are as follows: Defendant and his co-defendants were State convicts serving sentences in the East Texas penitentiary, located at Kusk, in said Cherokee county. • On the day of the homicide they had been at work in the custody of a guard, outside the walls of the penitentiary, and when returning late in the evening, in charge of said guard, to the penitentiary, and when within about one mile thereof, they succeeded, by some means not disclosed by the evidence, in disarming their guard of his double-barreled shot-gun, and they immediately fled into the woods near by. Their escape was at once reported to the officers in charge of the penitentiary-, and George W. Taylor, the deceased, being a sergeant of guards at said penitentiary, and it being his special duty to pursue and capture escaped convicts, accompanied by three or four other persons, and also by a pack of trained dogs, pursued said convicts, the dogs having been placed upon their trail. The chase was continued four or five miles, when the dogs overtook and brought to bay the persons whose trail they had been following. It was now night, and the place where the clogs were baying was in a creek bottom, where the brush and undergrowth was quite thick. Deceased and two others of the pursuing company approached to within a short distance of the dogs, and were fired upon from the direction of where the dogs were. One of the pursuing company, and also the horse he was riding, were wounded by this shot. One of the pursuers then fired a pistol shot in the direction of the dogs, and thereupon the dogs moved off as if again in pursuit of the fleeing persons, and after running a short distance again stopped and began baying. Deceased followed after the dogs upon horseback, and when he had arrived within a few steps of the dogs he was fired upon from the direction of the dogs, and was instantly killed. Two reports of firearms, resembling the reports of a shot-gun, were heard at the time and place of the killing, and the wounds in deceased’s body were made by shot. After these fatal shots were fired, the dogs continued the chase for some distance, until called back by the pursuers, and neither of the parties who were being pursued were at that time captured. These convicts knew the deceased Taylor; knew that he was a sergeant of the penitentiary guards, and that his particular duty and business were to pursue with dogs and capture escaped convicts. They knew that Taylor and his dogs were pursuing and endeavoring to capture them when they fired upon the pursuers the first time, and when they fired the shots which killed Taylor. That they were the persons being pursued, and the persons who killed Taylor, there cannot be, from the evidence, the shadow of a reasonable doubt. Though the evidence of their guilt is circumstantial, it is of that connected and cogent character which engenders moral certainty, and which absolutely excludes every reasonable hypothesis except the one that these three convicts, acting together, committed the homicide.

[Opinion delivered February 20, 1886.]

The charge of the court to the jury is full, clear and correct, evincing careful preparation, and marked aptness in the application of the law to the facts.

Counsel for the defendant requested special instructions embodying the law of manslaughter and of justifiable homicide upon self-defense. These instructions were properly refused because they were not warranted by the evidence. To reduce a homicide from murder to manslaughter it must have been committed under the immediate influence of sudden passion arising from an adequate cause. In this case, the evidence shows a sedate and deliberate mind on the part of the slayers in the commission of the act, and a formed design to kill. That the killing was upon express malice is abundantly established by. the testimony. There is not a fact in the case which would have justified the court in charging the law of manslaughter.

As to self-defense, there is no evidence presenting the issue. Deceased, in pursuing and attempting to capture the convicts, was in the discharge of his duty as an officer. The law and his oath of office required of him a prompt and faithful performance of this duty. His pursuit and attempt to capture them was therefore lawful. It was in no sense an “ unlawful and violent attack ” upon them. There can be no self-defense unless the resistance be to prevent the perpetration of a felony, as provided in article 570 of the Penal Code, or to protect the person or property from some other unlawful or violent attack, as provided in article 572 of the Penal Code. If Taylor, under the circumstances, had killed one or all of the convicts, he would not have committed murder. He was making use of no more force than was necessary to effect their capture, and the trailing them with dogs was not unlawful or improper, and was the usual means resorted to in such cases. The fact that the slayers of Taylor were convicts, and killed him in an attempt to secure their liberty, in no degree excuses, justifies or extenuates the crime. (Washington v. The State, 1 Texas Ct. App., 647; Waite v. The State, 13 Texas Ct. App., 169.)

We find no error in the conviction. A brave and faithful officer, while in the proper discharge of his duty, was ruthlessly and deliberately shot dead by this defendant and his companions, without legal cause or provocation. The defendant may congratulate himself that the jury spared his life. The judgment is affirmed.

Affirmed.