Manier v. State

• Decision Date: 31 December 1872
• Parties: MANIER v. THE STATE.
• Court: Tennessee Supreme Court

65 Tenn. 595

MANIER

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1872.

FROM JACKSON.

Appeal from a judgment of the Circuit Court.

No record found.

SNEED, J., delivered the opinion of the court.

The prisoner was indicted for the murder of one Peter W. Neil. He was put upon his trial in the Circuit Court of Jackson county, convicted of voluntary manslaughter, and adjudged to suffer imprisonment in the penitentiary for six years. To reverse the judgment on this conviction, he has appealed in error.

As the proof impresses us, it would seem that the deceased was not slain by the prisoner, nor by any one else with whom the prisoner was there and then combined to kill the deceased, or to do any other unlawful act. The theory of the case, as predicated upon the proof is, that during an affray between the prisoner on one side, and the deceased and another on the other side, the deceased was accidentally slain by some one co-operating with him, and by a blow aimed perhaps at the prisoner. Who did the killing, however, we do not undertake to determine, as the case must go down for retrial, when the truth may be more satisfactorily developed. It is manifest upon this proof, however, that the prisoner did not strike the fatal blow; and the question is, whether, under the circumstances, he was properly convicted of manslaughter.

It appears that the prisoner and the deceased, with James and William Fuqua, Hugh Pheenis and Thos. Manier, on the evening of the 22d December, 1872, left the town of Granville in company to return to their homes in the country. They were neighbors, and there was no unfriendliness exhibited in the party, either while in the town or at any other time until a few minutes before the difficulty, which resulted in the death of one of them. It seems that most of the party were somewhat under the influence of liquor when they left the village; that they brought some liquor in bottles out of the town with them, and now and then resumed their potations on the road. The first indication of an unfriendly spirit was when the prisoner called upon deceased to treat, whereupon deceased made some harsh reply, and both for a moment seemed angry. Their companions, however, interfered and quieted the matter, and the two then drank together, and then the whole party went on their way. After proceeding a few hundred yards they met a colored boy with a small shotgun in his hand. The weapon is described as a small, halfstock boy's gun, that could be fired in one's hand like a pistol. One of the witnesses states that the deceased first asked the boy to lend him the gun. The boy refused, stating, so that the crowd could hear it, that the gun was empty, and belonged to his brother. Others say that the prisoner asked for the gun, when the boy made the same reply, that the gun was empty, and declined to lend it. The prisoner, however, succeeded in getting the gun, at the moment of its delivery to him whispering to the boy something the witness did not hear. The boy also delivered to the prisoner his pouch of ammunition. It is stated, also, that at the moment of asking for the gun the prisoner told the boy he was about to have a difficulty; but this statement varies from that of the other witnesses. Upon procuring the gun the prisoner at once alighted from his horse, and remarking, ““now I'm a man,” snapped the gun twice at the deceased and James Fuqua, who were riding the same horse. Upon this, James Fuqua remarked that he was a man too, and he and deceased at once dismounted and advanced towards the prisoner for a fight. A stone was thrown by some one, which knocked down the prisoner and inflicted a severe wound on his face, and almost simultaneously the deceased was struck down with a stone or some other weapon, from which blow he afterward died.

From the proof it is manifest, as already stated, that the prisoner did not strike the blow, and that neither of his adversaries received any blow or hurt from him in the course of the affray. It is very clear, on the contrary, that the blow by which the deceased came to his death was stricken by accident and came from his friend, and was aimed at his adversary, and the case was thus understood and treated upon the trial by the court and jury. There is some proof that the prisoner, on leaving home that day for the town of Granville, made some loose remarks as to his purpose to kill some one that day; but the witnesses who speak of this, say he was a jocose and mirthful man, much addicted to such braggart and foolish style of remark. There is certainly nothing in the case that shows any settled malevolence toward the deceased prior to the transaction now in judgment.

As appropriate to this state of facts, the court charged the jury as follows:

“In this case it is insisted by the Attorney General that the defendant, at the time said Neil may have been killed, if killed by Fuqua, was engaged in an unlawful act, to-wit, committing an assault upon said Neil and James Fuqua, and that said assault had been brought on by the fault of said defendant. I will state to you, that if the defendant unlawfully commenced an assault on said Neil and Fuqua, and Fuqua, for the bona fide purpose of defending himself from an unlawful attack of defendant, threw a rock, intending to hit and defend himself from defendant, and it by accident hit and killed said Neil, it would be a case of involuntary manslaughter in said defendant.” And again: “If the defendant had committed such assault on Neil and Fuqua as made it necessary and proper for them to fight in their defense, and Fuqua, in making such defense, accidentally killed Neil, defendant would be responsible, and his crime would be involuntary...