Ferrell v. State
| Decision Date | 01 January 1875 |
| Parties | WILLIAM FERRELL v. THE STATE. |
| Court | Texas Supreme Court |
APPEAL from Hill. Tried below before the Hon. F. P. Wood.
William Ferrell was indicted for the murder of Miss Martha Gray. The facts, as detailed by the testimony, are that on the 26th of May, 1874, in Hill county, Ferrell and one Henry Parton went to a grocery, five miles distant from Mrs. Gray's, where Ferrell and wife lived, Mrs. Gray being his mother-in-law. They returned late, drinking on their way five or six times, Ferrell once losing his saddle-bags, which were picked up by Parton; Ferrell talking much, and saying he would kill a man before next day; reaching Mrs. Gray's, Ferrell tried to ride into the house, but was prevented by his wife; he then called for “the d____d old woman--he intended to kill her;” he dismounted, went into Mrs. Gray's room, and employed himself some time beating her bed; coming out and going through a passage-way he found a hoe--broke the handle across a table, and taking a piece of the handle, about two and a half feet long, went to the door of another room, where Ike Gray and one Scroggins were sleeping, and called for Ike; Ike pacified Ferrell, who then commenced calling for Scroggins; Scroggins by this time had put on his clothes, and Ferrell, still calling for Scroggins, said, “Come out, God d____n you, I'm going to kill you before sun-up.” Scroggins tried to pacify him, but he still kept cursing and threatening; Scroggins attempting to go out by a low door, (only four feet high,) the only exit from the room, Ferrell struck at him (Scroggins) as he reached the door with the piece of hoe-handle and struck the top of the door. Scroggins then sprang upon Ferrell, pushing him with one hand and stabbing him with the other, using a small pocket-knife. They both fell together. Scroggins kept stabbing him as fast as he could, Ferrell trying to catch his hands. Ferrell's wife interposed, and tried to pull Scroggins off; Scroggins noticing her, sprang to his feet and ran as fast as he could. Ferrell received eleven stabs, inflicted by Scroggins, none of greater depth than a quarter of an inch, except two, which were about half an inch deep, and none at all dangerous. Aided by his wife, Ferrell went into his room, but at once got a gun, returned to the door, and seeing the deceased, Miss Martha Gray, exclaimed, “I'll save one of you!” and fired, the shot taking effect, from which she died two days afterwards. The mother of deceased testified that her daughter, when conscious of death, said she knew Ferrell had shot her by mistake.
The charge of the court is sufficiently given in the opinion.
The jury found a verdict of guilty of murder in the first degree, with the death penalty.
Motion for new trial overruled, and defendant appealed.
S. C. Upshaw, for appellant.
George Clark, Attorney General, for the State.
The judgment in this case must be reversed for error in the instructions given by the court to the jury, and also for refusing to give some of the charges asked by appellant.
We call special attention to only a few of the more prominent and essential of these errors to guard against their recurrence upon another trial of the cause.
The court instructed the jury, and, indeed repeats the proposition several times in different forms, if the defendant, Ferrell, with a sedate mind and formed design, was attempting to kill Scroggins or Mrs. Gray, and without malice towards the deceased, Martha Gray, and without intention or design, killed her, “such malice,” that is, the malice towards Scroggins or Mrs. Gray, “is carried over to the person killed,” and the jury should find him guilty of murder in the first degree.
This proposition is in direct conflict with the decision of this court in the leading case of McCoy v. The State, 25 Tex., 33, and its uniform ruling from the adoption of the penal code, and the division of the offense of murder into two degrees. It was said by the court in the McCoy case, But as it is not with express malice to the party killed, and as the court had previously said the malevolence of murder in the first degree must be directed towards the deceased as its object, the court unquestionably are to be understood to hold that in the case put the offense is murder in the second degree. And it seems even to have been a matter of some doubt with the court whether, since the adoption of the code, (Art. 49,) the evil design against the party intended to have been killed can be said as at common law to be carried over and imputed to the deceased.
The counsel for appellant asked of the court the following instructions, viz: “While intoxication is no excuse for crime, yet the jury must in this case take into consideration the intoxication of the defendant in determining whether he was in a condition to entertain a malicious design.” And also, “In considering the attack, (if you find that any was made by the defendant on Scroggins,) you will take into consideration the physical condition of the defendant, and whether from that consideration he was physically unable to use the hoe handle in a dangerous manner.” Both of which the court refused, without pausing to determine whether these instructions were in all respects strictly accurate, or whether they should have been given in the precise form in which they were asked; for be this as it may, we think they were entirely sufficient to call the attention of the court to the phase of the case suggested by them; and if they should not have been given in the precise form in which they were drawn, to which however we see no serious objection, such instructions as were appropriate and suitable to the aspect of the case suggested by them should have been given. This, however, was not done. The court not only refused to give the charges asked, but instead thereof instructed the jury “that drunkenness is no excuse or justification, or even palliation for crime, but must be considered rather as an aggravation of the offense, and you will apply this principle of law to this case.”
The erroneous instruction given by the court, to which we have heretofore referred, confounding to a great extent the distinction between the offenses of murder in the first and murder in the second degree, rendered it still more essential, in view of the facts before the jury, that they should have been correctly instructed upon the points suggested in these charges asked by appellant. But as we have said, the court, instead of doing this, told the jury that the condition of the defendant at the time of the homicide, the result of intoxication, was an aggravation of the offense, and should...
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