English v. State

• Citation: 30 S.W. 233
• Parties: ENGLISH v. STATE.
• Decision Date: 06 March 1895
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

30 S.W. 233

ENGLISH v. STATE.

Court of Criminal Appeals of Texas.

March 6, 1895.

Appeal from district court, Young county; George E. Miller, Judge.

John English was convicted of murder, and appeals. Affirmed.

R. F. Arnold and Johnson & Aikin, for appellant. Mann Trice, Asst. Atty. Gen., and N. G. Turney, for the State.

HURT, P. J.

This is a conviction for murder of the second degree, with punishment assessed at confinement in the penitentiary for 35 years. Upon application of the county attorney, a venire was ordered for 100 jurors, to be returnable on the 14th day of August, 1894. This order was made by the court, and entered upon the court's docket, but was not carried into the minutes by the clerk. A venire was issued in conformity with the order. After the return thereon, the minutes were made to conform to the order. In this there was no error.

A great deal of evidence was received, over the objection of appellant, tending to prove that appellant and John Willingham had been in the business of horse stealing; that they had stolen quite a number of horses from different persons; and that they, when they believed they were in danger of being arrested, resorted to their arms. Several fights were introduced in evidence under circumstances showing evidently that they were determined not to be arrested under any circumstances. Evidence was introduced tending to show that after the homicide they did not propose to be arrested, and that to prevent this they would resort to deadly weapons to prevent even a legal arrest. Under the circumstances of this case, all this evidence was competent. What was this case? Appellant and Willingham were in possession of stolen horses. Williams, sheriff of Young county, and J. T. Horton, the deceased, at the request of Williams, went to examine some horses, to ascertain whether they were stolen property. Williams says that they, deceased and himself, went over to the south side of the public park (situated in the town of Graham), to look at the horses. "We looked at the horses, but could not make out the brand, as it was not light enough. Horton and myself sat down on the park steps to wait for the men to come back for the horses. The horses were hitched on the south side of the park. We had not been there long, when the men came to the southwest corner of the square, and then walked on until they got the horses between us and them. Then they turned northeast towards the horses, and walked rapidly to where the horses were. Horton and I walked up towards them. The smaller man, whom I now identify as John English, stood in front, and to the right of the larger man, John Willingham. The larger man was about to get on his horse, and I walked past the defendant, leaving him to my right, and halted the other man. Just as the words came from my mouth a pistol shot was fired just to my right, and I turned, and saw Horton falling, and defendant and I went to shooting at each other. We shot three or four times each, and to the best of my knowledge the larger man fired one shot at me, and they both ran off. I fired one shot at the larger man as he ran off." The evidence demonstrates that deceased did not fire his pistol at all. It is beyond dispute that appellant and Willingham were in possession of stolen horses. The court instructed the jury in regard to a homicide in prevention of an...