Price v. State

• Citation: 2 S.W. 622
• Parties: PRICE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 27 October 1886
• Court: Texas Court of Appeals

2 S.W. 622

PRICE

v. STATE.¹

Court of Appeals of Texas.

October 27, 1886.

Appeal from district court, Marion county.

The charging part of the indictment reads as follows: "____, did unlawfully, and with malice aforethought, make an assault upon the person of one James Sims, with the intent of him, the said A. R. Price, then and there to kill and murder the said James Sims, contrary," etc. A term of two years in the penitentiary was the penalty assessed against the appellant.

The substance of the testimony for the state was that Sims, stopping at a bar-room shortly before the shooting, remarked, with reference to a crowd, including defendant, that there were "enough d____d scabs here to swear those fellows out;" the fellows alluded to being defendants in certain cases pending in the federal court. Shortly afterwards, Sims saw defendant and others in the federal court-room, when some violent expressions were made by each; the defendant being the first to open the conversation. Still later, Sims left the court-room, and was passing a saloon other than that first referred to, when the defendant appeared, pistol in hand, and fired at him. Sims fled into and through the saloon; the defendant following, and firing three more shots. One of the shots took effect in Sims' arm. Sims, when on the stand, denied that he knew defendant was a witness in the federal court when he made the remark to the bar-keeper. He admitted that he cursed the defendant, but denied that he called defendant a d____d son of a b____h, or threatened "to make him eat dirt as soon as he got out of the court-house and struck dirt." Several witnesses testified, for the state, that they saw defendant fire upon Sims. None of them stated that Sims was making any demonstrations at the time.

The defense proved that defendant made no reply to Sims' remark about the "scabs" in the saloon, but walked off. When the several parties afterwards met in the federal court-room, some one asked who Sims was. Sims replied that his name was "Jim Sims, by G____d!" and, referring to defendant, "that son of a b____h is a d____d fool!" Defendant replied: "You won't go down stairs and call me that!" Sims said that he would; and that, when he got down stairs, he would make defendant eat dirt. Defendant appealed to the United States marshal for protection, and afterwards made overtures to settle the dispute amicably, which were rejected by Sims. Defendant soon left. Sims followed in a few minutes, and the shooting occurred shortly afterwards.

The defendant's motion for continuance set up that, by some of the absent witnesses, the defendant would corroborate the several witnesses present as to the insults and abuse heaped upon him by the...