Nalley v. State

• Decision Date: 09 December 1891
• Citation: 17 S.W. 1084
• Parties: NALLEY v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1084

NALLEY v. STATE.

Court of Appeals of Texas.

December 9, 1891.

Appeal from district court, McLennan county; L. W. GOODRICH, Judge.

Indictment of S. A. Nalley for murder. Verdict of guilty, and judgment thereon. Defendant appeals. Reversed.

J. C. Jenkins and Pearre & Boynton, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is the second time this case has been appealed. The former appeal will be found reported in 28 Tex. App. 387, 13 S. W. Rep. 670. The supposed errors constituting reversible error on this appeal involve alone the sufficiency of the charge of the court. No other errors are complained of. There was no eye-witness to the killing, and appellant's testimony is the only direct evidence as to what did occur in the saloon at the time of the homicide. His testimony makes out a case of homicide, justifiable on the ground of self-defense. His testimony is that one Mrs. Burns owned the saloon in which the deceased was bar-keeper, and that he had asked Mrs. Burns to loan him $2.50; that she told him to go to the saloon and get the money. He says: "I went right into the saloon, and asked Gains for the money. He was standing behind the bar, and as I stepped in he said, `What in the hell do you want here, you son of a bitch?' I said, `I have come for some money which I have orders to get.' He said, `I will pay you; I will kill you, you damn son of a bitch;' and as he said this he ran his right hand under the bar, and seized something I thought was a knife or a pistol. I saw it in his hand as he made a rush around the east end of the counter. Just as he was at the turn of the counter I fired. His left side and a little of his back was towards me. I did not stop to look at anything, but stepped right out, and met Joe Williams at the door, and said, [to Williams,] `He run at me with a knife, and I shot him.'" Williams corroborates the statement of defendant's declaration to him as soon as he met him. Deceased was found lying on the floor of his saloon, near the end of the counter, and a large knife was found lying upon the floor between his outstretched arm and his body. The blade of the knife was broken off, and was only about an inch and a half long. A cigar-box was found upon the breast of the deceased. Deceased was shot in the left side of the back of the neck, the ball ranging up, and coming out near the top of the forehead. It is made to appear with unquestioned certainty that the deceased and defendant had had a difficulty on the night previous, and that they had indulged in mutual serious threats each towards the other. The theory of the state was that defendant had armed himself, gone to the saloon, and, upon entering same, without a word to deceased, had shot and killed him, — in a word, that the killing was an assassination; that the deceased was engaged in trying to deface or obliterate the revenue stamp upon the cigar-box which he held in his hand with the old knife at the time he was shot. The court charged the law of self-defense predicated upon threats, and the acts of the deceased manifesting an intention to execute his threats. Upon this phase of ...