Jones v. State

• Decision Date: 27 June 1888
• Parties: JONES v. STATE.
• Court: Texas Court of Appeals

9 S.W. 53

JONES v. STATE.

Court of Appeals of Texas.

June 27, 1888.

Appeal from district court, San Saba county; A. W. MOURSUND, Judge.

Indictment for murder against James Jones. From a judgment of conviction defendant appeals. The trial court refused a special charge requested by defendant, "that if Jim Jones, defendant in this case, believed, and had reasonable grounds to believe, or for such belief, at the time he shot the deceased, Tom Nowlin, (if you find he shot him,) that he, defendant, Jim Jones, was being unlawfully arrested, that is, arrested without lawful authority, and that the life or person of him, the defendant, Jim Jones, was in immediate serious danger thereby, and the acts done by the defendant, Jim Jones, were necessary to prevent such unlawful arrest of him, defendant, Jim Jones, and without a resort to such extremity the said unlawful arrest could not have been prevented, and the deceased had not, in fact, any lawful authority to make such arrest, then the homicide was in law justifiable, and you will acquit defendant."

Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This is a conviction for murder of the second degree, with penalty fixed at 24 years in the penitentiary. The appellant lived in San Saba county. Thomas H. Nowlin lived in and was deputy-sheriff of Llano county. The following capias was issued by the clerk of Jeff Davis county: "The State of Texas, to Any Sheriff of Texas, Greeting." Then follows the command to arrest Jim Jones, charged by indictment for theft of cattle in Jeff Davis county. This capias came to the hands of Caldwell Roberts, sheriff of Llano county, who, on the fourth or fifth day before the homicide, gave it to Nowlin, his deputy, with orders to go and arrest the appellant. On the 5th day of April, 1888, Nowlin, accompanied by Lee Peek, just after sunrise, went to the house of appellant to execute the capias. Jones and his wife were in bed. Nowlin hallooed. Jones replied that he "would be there in a moment," and soon afterwards opened the door with a shotgun in his hand. Peek, relating the circumstances attending the homicide, testified as follows: "Nowlin said: `Jim, we have got a paper for you;' calling the paper by a name I do not recollect. Defendant said: `All right. I thought it was a mob,' or a `d__d mob.' He also said that some of the people around there had been accusing him of horse-stealing. Jones said: `Let me see the papers.' While the conversation was going on, Nowlin and myself had dismounted, and walked up to the door. Nowlin asked defendant: `Shall I read the paper, or will you read it?' The defendant then took the paper, which Nowlin gave him, and read it until he came to the words `Jeff Davis county.' The word `Jeff' was blotched, and defendant stepped up to Nowlin, and asked him what it was. Nowlin told him, and defendant stepped back and read on awhile, and then suddenly raised his gun and fired. I saw him raising his gun. Nowlin commenced raising his pistol, and they both fired about the same time. I can't say which fired first. While defendant was reading the paper, Nowlin pulled out his pistol, and held it down by his side. I don't think Jones saw Nowlin when Nowlin pulled out his pistol. Nowlin fired two shots; the first so close together with Jones' that I could not tell who fired first. Nowlin fired his second shot after he had fallen." W. D. Wright, a witness for the state, testified that the pistol-shot was fired first. "I heard one pistol-shot before I heard the shotgun, and one pistol-shot after. * * * I heard the first pistol-shot from one to one and a half seconds before I heard the shotgun. I heard the second pistol-shot from three to four seconds after I heard the gunshot. * * * Defendant was wounded in the shoulder. I was about one hundred and ten steps from defendant's house when the shots were fired. I am a brother-in-law of Jones." The wife of defendant testified that she and her husband were in bed when the parties came to the house; that she waked her husband, and remained on the bed when he went to the door. "Nowlin handed the paper to defendant, and he read a part of it, and said to Nowlin: `Tom, here is a word I can't make out.' Mr. Nowlin said he could. Defendant then stepped one step, and handed the paper to Nowlin. Defendant stepped back one step, and Nowlin finished reading the paper. Defendant was standing, and had been all the time, with his gun in his right hand, holding it about the lock, the muzzle resting on his foot. When Mr. Nowlin finished reading the paper, defendant spoke, and said: `Tom, I will not go with you.' As defendant said that, Mr. Nowlin said, `You won't?'...