Ward v. State

Decision Date16 March 1892
Citation18 S.W. 793
PartiesWARD v. STATE.
CourtTexas Court of Appeals

Appeal from district court, Red River county; E. D. McCLELLAN, Judge.

James Ward was convicted of murder, and appeals. Reversed.

M. L. Sims and N. A. Shaw, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

HURT, J.

This is a conviction for murder of the second degree, the penalty being fixed at 25 years in the penitentiary. We will state substantially the facts attending the homicide, for the purpose of presenting a question in regard to which counsel contend the trial court erred in failing to give in charge to the jury article 571, Pen. Code.

Mrs. Sarah Messick, (widow of deceased:) "Messick went to town the day of the killing. I gave him his pistol, which was wrapped in a flannel rag." The witnesses Norri, Hutchinson, and others testified that deceased had a pistol on his person. Dr. Williams: "I spoke to Ward, and rode off. Messick immediately spoke to Ward. When Ward shot I could not see what Messick was doing with his left hand, as his body was between me and his left hand, but it was not down by his side." "The first time I noticed the attitude of the body after Messick was dead, his left hand was on his right breast, and a pistol was partially out of his right breast pocket, and in close proximity with his left hand. He had his left raised in some way when he was shot, but I could not see its exact position for his body. I could not see what Messick was doing, as the right side of his body was turned from me, but his left hand was raised in some position. Messick's hand was on his right breast, at or near where a pistol was partially drawn. I saw the deceased when he fell. He had a pistol in his right breast pocket, which was partially drawn. I cannot say whether he had his hand on it when shot. This is all I can say about an attack on deceased by the defendant. I did not understand what Messick said to Ward; Ward said nothing." James Ward said: "When I got up in 20 or 30 feet of them, Dr. Williams spoke to me. Deceased looked, answered, and said, `By God, I have got you now' or `will get you,' and threw his hand up to his breast, and I saw him try to pull out a pistol. The pistol seemed to hang, and was about half-way out when I fired. I shot before my horse stopped. It was in his left hand. Messick was shot in the left hand. He was a left-handed man." The article referred to above provides: "When a homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attempting or committing such murder, * * * are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." Eliminate from the article all that does not apply to the case in hand, and it will read as follows: "When the homicide takes place to prevent murder, if the weapon used by the party attempting or committing such murder is such as would have been calculated to produce death, — was a deadly weapon, — it shall be presumed that the person using such a weapon designed to kill and murder." If construed strictly, this...

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9 cases
  • Clark v. State
    • United States
    • Texas Court of Criminal Appeals
    • 26 Mayo 1909
    ...Jones v. State, 17 Tex. App. 602; King v. State, 13 Tex. App. 277; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; Word v. State, 30 Tex. App. 687, 18 S. W. 793; and Yardley v. State, 50 Tex. Cr. R. 644, 100 S. W. 399, 123 Am. St. Rep. 3. Complaint is also made that the court failed to in......
  • Briscoe v. State
    • United States
    • Texas Court of Criminal Appeals
    • 8 Junio 1921
    ...the weapon deceased had, but as to whether he had one at all; if he had one it was a gun, and per se a deadly weapon. In Ward v. State, 30 Tex. App. 687, 18 S. W. 793, the instrument in deceased's hand was a pistol, and a deadly weapon per se. In Hudson v. State, 59 Tex. Cr. R. 650, 129 S. ......
  • Gunn v. State
    • United States
    • Texas Court of Criminal Appeals
    • 22 Febrero 1922
    ...which were held to call for the submission of the law of article 1106, which are contrary to our views. We next have the Ward Case, 30 Tex. App. 689, 18 S. W. 793, from whose facts it appears without dispute that deceased had a pistol, and was in the act of drawing accompanying this action ......
  • White v. State
    • United States
    • Texas Court of Criminal Appeals
    • 17 Noviembre 1920
    ...the jury and in the charge of the court. Appellant was entitled to the charge refused on this phase of the testimony. See Ward v. State, 30 Tex. App. 689, 18 S. W. 793; Burton v. State, 3 Tex. App. 410, 30 Am. Rep. 146; Caldwell v. State, 5 Tex. 20; Cromwell v. State, 60 Tex. Cr. R. 183, 13......
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