Isaacs v. State

• Citation: 25 Tex. 174
• Parties: ABRAHAM ISAACS v. THE STATE.
• Decision Date: 01 January 1860
• Court: Supreme Court of Texas

25 Tex. 174

ABRAHAM ISAACS

v.THE STATE.

Supreme Court of Texas.

1860.

Under the code, a homicide committed with a dagger, under circumstances which would otherwise render the killing manslaughter, becomes murder, and is punished accordingly.

If the slayer provoked the deceased by profane language and angry gesticulations to strike him a blow with a stick, which was not followed up in such manner as to produce a reasonable expectation or fear of death, or some serious bodily injury, and which did not endanger his life, he cannot be justified on the ground of self-defense in retreating out of danger, drawing a dagger, returning to the conflict, and killing his antagonist.

APPEAL from Walker. Tried below before the Hon. Peter W. Gray.

Indictment against Abraham Isaacs for the murder of Samuel F. Spillar, charged to have been committed on the 18th day of June, 1859, with a dagger.

The defendant had been occupying a room of the office of the deceased, using it in carrying on his business as a shoemaker. Complaint had been made to the deceased, that the defendant annoyed the school girls in passing by, by looking at them out of his window and speaking to them, and was requested to have the annoyance corrected. The deceased replied that the defendant was a good man, and only required to be advised as to his behavior; and he promised that it should cease. The deceased thrice closed the window by tacking cloth over it; which the defendant twice removed. The last time, which was before breakfast on the morning of the difficulty, whilst in the act of tacking the cloth, the defendant drew his dagger on the deceased, who left the room and went to his residence and obtained a shot gun; the defendant stated in connection with a declaration to one of the witnesses of having drawn the dagger, that the deceased drew on him his shot gun, and that he was afraid to return to the office for fear the deceased would shoot him.

The deceased threw the defendant's tools out of the office; and the defendant went away and engaged a wagon to remove them. During the morning, on his return towards the town of Waverly (in which the office was situated) in company with Fitzpatrick, with whom he had fallen in at Emore's (to whom he applied for the wagon), at the school house he was told by two of the students that Dr. Spillar was at his office and wished to see him and have a settlement before he left for Danville, where he was going that morning. A conversation ensued concerning the difficulty which had taken place. One of his boys told the defendant that Dr. Spillar was not angry with him. The defendant replied “he would kill him; that he had thrown his tools out of the office.” On cross-examination the witness said that the defendant is a foreigner and speaks English badly; that some portion of the remark he did not understand; but heard the word “kill.” The defendant then asked Fitzpatrick to go with him to the office; where they went accordingly.

One of the school boys had been sent to inform Dr. Spillar that the defendant was coming, who found him in front of his office engaged in mending his saddle; on receiving the message, he said he was glad of it, as he wished to have a settlement with him before he left for Montgomery county, and requested the youth to bring his stick from the office, which he accordingly did. The deceased placed the stick on the stump which he was using in mending the saddle.

The deceased was thus engaged when the defendant came up. The former remarked that he wanted no difficulty; the latter replied to the same effect. The defendant commenced cursing and using abusive epithets towards, and shook his fists in the face of the deceased. The deceased replied, “if he did not go away he would flail him with a stick.” He continued talking and shaking his hands at the deceased, who then struck him with the stick. Defendant then retreated twenty or thirty feet, drew his dagger, and returned upon the deceased with it; the latter then struck him with the stick a second time, and was retreating when he struck the third blow, which knocked the defendant down on his knees. He arose, caught the deceased by the collar, and stabbed him with the dagger, from which would he died.

A version as to this encounter, different from the foregoing, was given by Fitzpatrick, who, it appears, was, at the time he testified, intoxicated, and whose testimony was given in a disconnected manner on the trial. The other witness stated that Fitzpatrick was...