Trumble v. State

Willson, Judge.

We have given this case a careful consideration in the light of the able brief and argument of counsel for the defendant. There is no doubt but that the legal propositions insisted upon by counsel for defendant are abstractly correct, but in our judgment none of them are applicable to the facts of this case. When we look to the evidence, there is but one reasonable conclusion that can be deduced from it, and that is that the homicide was an assassination, a deliberate killing actuated by malice express. There is no evidence even tending to show the existence of facts which would reduce the homicide to murder in the second degree or to manslaughter.

At the time the deceased was shot, he was stooping down, dipping water from a spring. He was unarmed and in his shirt sleeves. He had his child with him. Defendant was twenty-five yards distant from him, and his presence was evidently not known to the deceased. Such was the position and condition of the parties at the time the defendant commenced firing the fatal shots, as described by the only eye witness of the tragedy, and whose testimony is conclusively corroborated by the physical facts and by circumstances testified to by other witnesses. As we view the evidence, it rebuts the theories of a sudden, unexpected meeting between the parties; of sudden passion on the-part of the defendant; of self defense, so ingeniously presented by his counsel. There was. no sudden meeting—no meeting at all, in fact, for defendant began firing upon deceased at a distance from him of twenty-five yards. There was no sudden passion excited in the mind of the defendant. His deliberate conduct at the time of and immediately after the shooting shows that he acted calmly, with a sedate mind and a formed design to kill. His aim was true and he continued firing until he knew that his victim had been mortally wounded.

There is certainly no evidence which tends to show that he acted in self defense. As to that part of the theory of self defense predicated upon the acts of the brother of deceased, the evidence very satisfactorily shows that defendant, at the time he opened fire upon the deceased, had not seen the brother of deceased, and did not know that he was in the immediate vicinity. As we understand the topography of the locality, he-could not have seen deceased’s brother until the latter reached the brow of the hill, and at that instant defendant was in the very act of shooting the deceased, and did shoot him before deceased’s brother could fire upon defendant in defense of deceased.

We are of the opinion that the evidence neither demanded hor warranted instructions upon the law of murder in the second degree, manslaughter or self defense. We see no error in the charge as given to the jury. It enunc:ates the law of the case fully and clearly, and it would have been error to have supplemented it with the special instructions, or any of them, which were requested by the defendant.

With respect to the testimony of the witness McGauhey, we are of the opinion that no material error, if error at all, was committed. Defendant had proved that deceased had threatened to kill him, and he was seeking-upon such threats to predicate self defense. It was competent for the State, we think, in rebuttal of such defensive theory, to prove that deceased was preparing to move away from that neighborhood, and to argue from such proof that if he had previously intended to kill the defendant he had abandoned such intention, and was seeking to get away from his vicinity. It tended to show, though remotely, that deceased, at the time he was killed, was making no effort to carry such threat into execution. But, although this testimony may have been inadmissible,- we can not perceive, in view of the other evidence in the case, how it could injuriously have affected the rights of the defendant, as there was no evidence raising the issue of self defense, or of any grade of homicide but that of murder in the first degree.

Opinion delivered June 16, 1888.

We have given attention to other errors complained of, but, considering the questions presented as unimportant, and as not involving any material error, if error at all, we deem it unnecessary to discuss them.

As the case is presented to us in the record, we think the conviction is legal, and we therefore affirm the judgment.

Affirmed.