McCoy v. State

• Citation: 25 Tex. 33
• Parties: CORNELIUS MCCOY v. THE STATE.
• Decision Date: 01 January 1860
• Court: Supreme Court of Texas

25 Tex. 33

CORNELIUS MCCOY

v.THE STATE.

Supreme Court of Texas.

1860.

The terms “proof is evident or presumption great,” as used in the 9th section of the bill of rights, are intended to indicate the same degree of certainty, whether the evidence be direct or circumstantial. The design is to secure the right of bail in all cases, except in those in which the facts might show, with reasonable certainty, that the prisoner is guilty of a capital offense.

??“Express malice,” one of the essential elements of murder in the first degree, not being defined by the penal code, resort must be had to the common law to determine its meaning.

The definition given in Blackstone's Commentaries, “that express malice is, when one with a sedate and deliberate mind, and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention, as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm,” is adopted as correct. See the opinion in this case for an analysis and exposition of the elements of the definition.

A. attacking B. with malice, shoots at him, but misses him and kills C., against whom he bore no malice, at common law is murder; but how far this instance may be modified by the provision of our code, art. 49, quære?

The object of the proof is to establish the existence of the malice in fact, towards the deceased, at the time of the killing, which prompted the accused to the commission of the deed. The sufficiency of the evidence to establish it is determined, as that of any other fact, by its effect to reasonably satisfy the mind.

In determining whether murder has been committed with express malice or not, the important questions are: Do the external facts and circumstances at the time of the killing, before or after that time, having connection with, or relative to it, furnish satisfactory evidence of the existence of a sedate, deliberate mind on the part of the person killing at the time he does the act? Do they show a formed design to take the life of the person slain, or do him some serious bodily harm, which, in its necessary or probable consequences, may end in his death; or such general reckless disregard of human life as necessarily includes a formed design against the life of the person slain? If they do, the killing, if it amount to murder, will be upon express malice. 20 Tex. 350.

The external circumstances indicating the design, may transpire at the time of the killing, as well as before that time.

In a case where there are facts, some of which tend to establish the existence of express, and others of implied malice, where fresh provocation intervenes between the preconceived malice and the death, it will not be presumed that the killing was upon the antecedent malice; and although it will not be presumed, it may be proved to have actuated the person in the killing by the circumstances and facts in the case, notwithstanding the fresh provocation.

APPEAL from Gonzales on a writ of habeas corpus granted by the Hon. Fielding Jones, and tried before him on the application of the prisoner for bail, after indictment found.

Indictment for the murder of David Baltzell, in the county of Gonzales, A. D. 1859. The facts disclosed by the record showed that the prisoner, in the evening, about three-quarters of an hour previous to the killing, had been playing billiards in a house adjoining the hotel, known as the Keyser House. About sunset the party walked out on the pavement in front of the hotel, there being present about fifteen persons. In reply to a remark made by some one present, McCoy remarked, “that was the way my friend Dr. Brantley was killed here; that he had been here since yesterday evening, and intended remaining until the next evening; he had not been near that corner (pointing to Monroe's store) and did not intend to go there, for the reason that he did not want any of them to speak to him, and if they did, he would spit in their damned faces, and then they could murder him as they had his friend Dr. Brantley.” After a pause, he remarked aloud that “if they had any friends present, he wanted them to go and tell them not to come about him.” It was also proved that McCoy, in his remarks on the street, had also said that “the Monroes were damned cowards and damned murderers, that he could whip any of them; that they and the Baltzells had murdered his friend; and that he would rather lie in Brantley's grave than to speak to them.” And concluded by adding, “that he was there, and if Monroe had any friends, they could go and tell them what he said.”

Shortly afterwards, William Baltzell came up with one Logan, who had invited him and his brother, David Baltzell, to sup with him, which invitation was declined by the latter, and entered the hotel. Information was communicated to David Baltzell that probably there would be a difficulty at the hotel. When William Baltzell and Logan came up, one Brantley, who was sitting on a bench by the side of the door, got up and looked after Baltzell; and McCoy, who had been walking around, stepped to the door, when Brantley made a motion or sign towards Baltzell by nodding his head.

David Baltzell was seen to have a double-barreled shot gun about ten or fifteen minutes before the difficulty, and going toward the hotel. McCoy, Hardy, Gibson, Blakeley and Brantley were in front of the hotel. Hardy was seen with a six-shooter during the evening. When William Baltzell and Logan entered the hotel, Brantley asked one of the witnesses with whom he was conversing who it was with Baltzell; to which the witness replied that he did not know. Brantley then walked to where McCoy and Davis were, and either Brantley or Davis remarked, “that's him now,” and looked in the door after them. McCoy and Brantley then went into the office, and opened the lid of a desk.

The witness started to go into the office, and was stopped by some one unknown to him, who said that Mr. McCoy was having a private conversation with a gentleman and that he could not go in.

William Baltzell and Logan proceeded to the supper room; the latter remarked he had supped once before. It was proved that the Baltzells had not been in the habit of going to the Keyser House since their affair with Dr. Brantley. Logan testified that when he insisted on Baltzell's going to supper, David said to William that he had better look out down there, as he might get into a difficulty, and gave him (the witness) some arms, for fear one might occur. William Baltzell testified that Logan (who was not sober) before starting to supper asked him for arms, and that he gave him a pistol, as did also his brother, David Baltzell. He stated that he himself was in the habit of going armed at the time; that Logan was an old friend with whom he went to sup, without apprehending a difficulty, and was himself perfectly sober on the occasion. He also stated that he knew McCoy was in town, but did not know he had any particular place of staying; knew him when he saw him. That he had his pistol, all the barrels of which were loaded and capped. When they entered the supper room, no one was at the table except the landlord and his wife, and another gentleman. It is to be inferred from the facts that the guests or boarders had supped. William Laird, a witness for the defendant, stated that thinking there would be a difficulty he spoke to McCoy and asked him to go with him and get a cigar, which offer was declined in a manner which was rather repulsive. The witness walked back, and met David Baltzell, who was standing by the last post of the portico, who asked him if he thought there would be a difficulty. Witness replied that he was fearful there would be, from what he had heard McCoy say in the evening, and told him what he had heard. To which he replied, that if the difficulty came up he would see it out. He then had in his hand a pistol, which was cocked.

Just then McCoy, who was standing at the door of the hotel, advanced a few steps in the hall. William Baltzell addressed him as “Mr. McCoy.” At that time David Baltzell ran to the door. McCoy, addressing himself to William Baltzell, said, “this is Mr. Baltzell, is it?” Was answered “yes.” McCoy then said “Billy Baltzell?” and was answered as before. David had then got to the door. The witness, Laird, saw McCoy have his hand raised, holding in it, as he supposed, a pistol, in the attitude of striking, and William Baltzell was drawing his pistol. McCoy said, “Don't you speak to me, you damned murderer,” and just then (as the witness thought) William Baltzell fired, and McCoy struck, and just about the same time David Baltzell fired at McCoy from behind, and was unseen by the latter. The witness was probably mistaken as to the firing of the pistol by William Baltzell. The cap exploded without firing, and none of the loads of his pistol were discharged.

William Baltzell was stunned by the blow, and on recovering from it sufficiently retreated through the dining-room. A struggle ensued between McCoy and David Baltzell; the crowd escaped out of the room, and no eye-witness testifies further than that during the short struggle another pistol was fired, some one fell, McCoy walked out with what a witness supposed to be a pistol in his hand, and David Baltzell was found dead, shot in the forehead by a large ball. A deringer pistol was lying near him on the floor; a slung-shot or colt was also picked up. About the wound were marks of powder burn. Hardy and Gibson went into the hall after the firing of the last pistol, and came out with McCoy, and they went off together. It was not shown where McCoy lived, what his business was there, who came with him, who were his associates, except as shown when the difficulty took place, nor that any one else took part in the fight besides the prisoner and the two Baltzells.

The district judge refused to allow bail to the prisoner, because it was the...