Orman v. State
| Decision Date | 17 December 1886 |
| Citation | 3 S.W. 468 |
| Court | Texas Court of Appeals |
| Parties | ORMAN v. STATE.<SMALL><SUP>1</SUP></SMALL> |
The proof for the state showed that the deceased was shot from his seat on a carriage-box by the defendant, on one of the streets of the city of Waco, on the day alleged in the indictment. Defendant, en route up the street, met the deceased driving down the street, stepped from the pavement to a point near the carriage, stopped it, and demanded of deceased to retract a statement made on that morning. Upon the deceased refusing, the defendant raised his hands and fired two shots with a pistol, and deceased fell to the ground, and soon expired. No arms were found about the person of deceased.
The testimony for both the state and defense concurred to the effect that on the morning of, but before, the shooting, the deceased, somewhat under the influence of whisky, called twice at defendant's saloon, and asked for defendant, denouncing him in the most violent terms, and iterating and reiterating his determination to kill defendant before noon on that day. Among other things, he said on both visits that defendant had accused him of cohabiting with a negress; that the negress was in every way the equal of defendant's mother and sisters, who had provided defendant with all he possessed by means of the revenues they derived from their prostitution with negro men. All of these facts were brought to the defendant's knowledge prior to the shooting. It was further proved that before the shooting, and immediately after he was informed of the deceased's visits, threats, and charges against his mother and sisters, the defendant went to the office of an attorney, stated the facts to him, and asked what penalty he would subject himself to if he killed deceased. The attorney read him the statute relating to homicide because of insulting language to a female relative, and advised him to avoid a difficulty with deceased.
Independent defensive testimony was to the effect that, when he left defendant's saloon the last time, deceased drove slowly along the street in front of defendant's house, his right side being towards the house. At that time he held a pistol in his right hand, on his seat, close to his person. After a time he drove back over the same street, his left side being exposed to the house. His right hand was held in the position in which it was held when he passed up, but was invisible to the witnesses. The meeting occurred further down the street, a few minutes later. The witnesses could not hear the words that passed, but saw deceased throw out his right hand as though to present a weapon, at which moment the defendant fired.
T. A. Blair and Herring & Kelly, for appellant.
The trial court erred in requiring the witness Herring to testify to the conference between himself and defendant shortly before the shooting. The statements then made to the said Herring, who was an attorney at law, were privileged communications, and therefore not admissible. The evidence disclosed a case of justifiable homicide, and therefore was against the verdict.
Asst. Atty. Gen. Burts, for the State.
Appellant was convicted of murder of the second degree, and sentenced to the penitentiary for 14 years, for the killing of W. F. Houghston, in the city of Waco, on the eighth day of September, 1885. We will here insert such facts as will present in a clear light the first error assigned by counsel for appellant:
Appellant was a man of family, having a wife, mother, and sister. He was a saloon keeper, and his residence was about the distance of one block from his saloon. Deceased was a hack driver, and it appears was living with a negro woman. Appellant and deceased were upon friendly terms, and were heard to joke each other a short while before the day of the killing.
Early in the morning, between 5 or 6 and 9 o'clock of the day of the killing, the deceased went to the saloon of appellant two or three times, looking for appellant, and stated openly, boldly, loudly, and repeatedly, so that the persons doing business near appellant's saloon heard him, that appellant had accused him of lying up with a negro woman; that appellant was a d__d son of a b__h, and that he intended to kill appellant before 12 o'clock that day; that said negro woman was as good as appellant's mother or sister; and that appellant's mother and sister were negro f__k__ng bitches, and that they had in this way accumulated and made all the property that appellant had. Deceased had a pistol with which he said he was going to do appellant up. He said: "We hack drivers are hell when we get started, and we'll do what we say we will."
On one of the occasions spoken of, deceased drove up to appellant's saloon with two negroes in his hack, and said those negroes had had sexual intercourse with appellant's mother and sister, and that he was going to make them tell appellant so. Deceased drove by appellant's residence, and drove near the house, and looked in, and appeared to be mad, and was holding his lines in his left hand, with a pistol in his right hand by the side of his right leg. He passed by, and was soon seen by another witness, still having the pistol down by the side of his leg. He soon returned, and as he was passing by appellant's residence, holding his reins in his left hand, with his right hand down by his side, on the opposite side from appellant, he met appellant, who was going from his saloon to his residence, and appellant asked deceased if he would take back what he had said about his mother and sister. Deceased said, "No," and at that moment appellant was seen to throw up his left hand, and then the shooting occurred. Deceased received two shots, from which he instantly died. The horse ran away with the hack of deceased. There was a woman in the hack.
After deceased went to appellant's saloon, as before stated, in appellant's absence, appellant went from his home to the saloon, — about 9 o'clock, — and ordered his breakfast. (There was a restaurant in connection with the saloon.) He sat down to eat his breakfast, and just as he sat down he was told that the deceased had been there looking for him, and was also told that deceased said his (appellant's) mother and sister were negro f__k__ng bitches, and that they had made in that way all the property appellant had. Appellant got up without eating his breakfast, and said: "No man can say that about my mother and sister and live." He sat down behind the counter, with his face in his hands, and appeared to be crying and in trouble. He then went out, and a while afterwards came back, and got his pistol, and put it in his pocket. After appellant was informed of what deceased had said about his mother and sister, he went to consult his attorney (M. D. Herring) about the matter, concerning what the punishment would be for killing in such cases. He appeared to be intensely excited; more so than the attorney had ever seen him before, and he had known him from his childhood. He told his attorney what Houghston had said about his mother and sister, as before stated, and asked him what the law was if he killed Houghston. The attorney read him the statute concerning killing, upon the use of insulting words towards a female relative, and advised him to have no trouble with Houghston. He said that was all he wanted to know, and started away, with his eyes filled with tears. The killing occurred soon afterwards. Appellant went to the court-house, and surrendered himself, immediately after the killing.
M. D. Herring was called as a witness for the state, while he was conducting the defense on the trial of the case, and, over objections of defendant, testified, in substance, as follows:
This evidence was objected to because the consultation with witness, and his advice thereon, was privileged; because appellant consulted witness as his attorney and confidential adviser. Was the...
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