Herrin v. State

• Decision Date: 01 January 1870
• Citation: 33 Tex. 638
• Court: Texas Supreme Court
• Parties: J. M. HERRIN AND ANOTHER v. THE STATE.

33 Tex. 638

J. M. HERRIN AND ANOTHER

v.THE STATE.

Supreme Court of Texas.

1870.

1. The common law definition of express malice as a deliberate intention of doing bodily harm to another, not authorized by law, has been adopted in former decisions of this court.

2. It is not necessary that the deliberate, premeditated intention should be formed and matured prior to the occasion at which it is carried into execution. If executed the moment it has been formed in the mind, the offense is the same as if it had existed for a much longer time.

3. Deceased and one B., while riding together on a country road, were assailed by three strangers, who rushed from the bushes, with pistols drawn, and ordered them to halt or they would shoot them. B. was unarmed, but deceased had a six-shooter pistol, which the assailing party ordered him to surrender. He refused to surrender it to them, but consented to give it to B., who, under orders from the assailants, received and placed it on the ground. B. made his escape into the bushes, and in a few minutes heard four shots in the direction of where he had left the others, and also heard a cry which he thought was in the voice of the deceased, who, a few hours afterwards, was found dead on the ground, pierced with four bullet wounds, and a short distance off his pistol was found, with two of its barrels discharged. About seventy yards from him lay one of the assailants, severely wounded by a pistol shot; but, according to B.'s testimony, this man was shot by one of his own comrades (who, by other testimony, was proved to be his brother) on a sudden quarrel arising between them while endeavoring to get deceased's pistol from him. The assailing party gave early notice of the difficulty, and stopped at the nearest house, where they were arrested for the murder of the deceased. B. was the only witness of what transpired between the parties. Held, that the facts make a case against the prisoners, in which the “proof is evident or the presumption great,” and there was no error in refusing them the privilege of bail; for, even if it be assumed that the deceased fired the shots missing from his pistol, yet, as the prisoners had him in their custody, and with their pistols drawn upon him, the inference is that he only acted in self-defense.

4. It is a common ruse of parties guilty of homicide to stand their ground, avow their deed, and invent some explanation to circumvent the law; but such devices should not avail, when the testimony and the circumstances make a case against them.

APPEAL on habeas corpus from Lamar. Heard below before the Hon. Hardin Hart.

This record presents a somewhat peculiar case of homicide. The opinion of this court sums up the conclusions from the evidence in a very clear manner, but it may be proper to develop the testimony more fully.

The principal witness for the state was William H. Bridge, who was the only person, besides the prisoners, and Irvine, the deceased, who was present at any stage of the encounter. The following was his testimony:

“My name is William Harvey Bridge. I am eighteen years old, eleventh day of last April; I live seven miles south of Paris, at my father's, James Bridge. I was at home on last Saturday morning. I left home early in the morning and came to Paris with a freedman, and got back about one o'clock. I started from home horse hunting, about one o'clock, alone. I returned about two o'clock, and left soon afterwards and went to Mr. Armstrong's. No one was with me. I returned home from Mr. Armstrong's, and left again about half-past two to go to Mr. Craft Irvine's house. I found Oliver Irvine at home alone. I started together with Oliver Irvine for Sulphur; no other person was with us; we were going fishing and hunting.

We were expecting to meet a fishing party, who were to leave word at Mrs. Acord's at what part of the creek they were going to fish at. We traveled on the road towards Mrs. Acord's. We got about a quarter of a mile beyond Mrs. Acord's about a half hour before sundown.

I had no arms with me. Mr. Irvine had a Colt's dragoon pistol and no other weapon. I had six hounds and Mr. Irvine a cur dog with us, and they took after some hogs in the road. We were hallooing at the dogs to get them away, and some ones were hallooing at us; but I could not hear what they said till we got the dogs stopped. They then asked us who we were; Irvine said ‘friends' and rode on; and they came out into the road behind us in a lope, and ordered us to stop or they would shoot us. We stopped, and they came up in about twenty yards, each man with a pistol in his hand. Oliver got down on the side opposite from the men. They said ‘give it up,’ or they would shoot him; he refused and said he would give me his pistol. The men told me to come and get it. I still sat on my horse about fifteen minutes. One ordered me to get down and get the pistol, or he would shoot me. I got down and went to Oliver, and he handed me his pistol. One of the men told me to lay it down, and I laid it down between me and Oliver, and the man put his pistol up and told Oliver he could whip him a fist fight. Another one told him to draw his pistol again and keep it cocked, or he would shoot him; but he replied ‘shoot and be damned,’ and the other one fired and shot him. The wounded man turned around and said he was shot and killed, and asked me if I did not do it. I told him ‘no, I had no pistol,’ and showed him the pistol lying on the ground. He said ‘yes you did and I will kill you for it,’ and drew his pistol and presented it at me, and I knocked the pistol up with my left arm and pushed him to one side, and dodged behind a tree; and he fired at me, and I run to another tree and he fired again; then I run fifty or sixty yards and he fired again. I run about thirty yards further and stopped and looked back, and saw that he had stopped, and heard him say ‘I have killed this damned rascal; hold on to that one.’ He continued to go back towards the others and I thought he had had about time to get back to the rest. I heard four shots fire, and heard some one that I supposed to be Oliver say, ‘O lord’ three times, and heard nothing more till I got opposite Mrs. Acord's house, when I heard one or two horses' feet coming up the road; seemed to be running at full speed; and some man rode up to the fence and said there was a dead man down the road, and a conversation continued for some little time, but I could not understand what was said. I then went on home.

I stopped on my way home, and told at the house of Mr. Ratliff, Dr. Stayton and Mr. Rogers, of the occurrence.

I saw Oliver Irvine Saturday night, dead. His body was about fifteen feet from the place I had left him in the evening. James Smiley, Bob Stephenson, Mr. Templeton and others were present. This was in Lamar county.

There were three men that first came up to us in the evening. They were all armed; one had a new Colt's dragoon, one a Remington dragoon, and one a Colt's navy. They came out of the bushes on the east side, behind us.

There was a fishing party arranged for Saturday, and I had spoken to James and George Smiley about it.

The prisoners in court were pointed out as two of the three that attacked witness on Saturday.”

There is a good deal more of this witness' testimony in the record, but it mostly consists of repetitions drawn out on cross and re-examination. He testified that he had learned since the killing that the wounded man was Abe Herrin, a brother of the prisoner, J. M. Herrin, who was the person who shot him. Witness could not give any reason why these men ordered him and Irvine to halt. They came into the road fifty or sixty yards behind witness and Irvine, and ordered them to halt immediately. Witness was not in sight of the party on the road when h...