Appeal from Henry circuit court.
Indictment of Edward Forsythe for assault with intent to kill David McCaw, and of James Forsythe for being present, and aiding and abetting Edward.
McCaw testified in regard to a quarrel on the morning of the alleged assault, but about half an hour before it, as follows: “I was at home on the morning of the fuss. I was living on James Forsythe's land. Had it rented. Mr. Forsythe, the old man, came through the gate on horseback, and was passing along, and stopped about fifteen steps from the porch, and looked around, when I said to him, 'Mr. Forsythe, what have you got to settle with me?' My brother-in-law, Chas. Howard, had told me what he had said.” Witness was stopped by the court from detailing what Howard had told him, and defendants objected to the introduction of any evidence as to what took place at that time, because Ed Forsythe was not present, and because it did not appear to be a part of the difficulty at the time of the shooting; but the court overruled the objection, and held the evidence competent as to James Forsythe, and defendants excepted. Witness then continuing, said: “When I spoke to the old man, he slipped down off his horse, on the opposite side from me, and I got up and walked around in front of the horse's head, and saw that he had his knife out. I then picked up a little stick, and started towards him; but I soon thought the stick would do me no good if he aimed to use his knife, so I threw down the stick, and drew my knife and opened it, and walked right close jam up to him,-- right close up to his face,--and said: 'Old man, if you want to knife this thing out, I've got one; just come on.' Then I says: 'You just say she stole potatoes, and I'll wear the earth out with you right here, sir,' I said: 'You old hog, you can't come here and abuse my wife when I am gone.' He said: 'I didn't know that I accused your wife of stealing potatoes.' He then got on his horse and started off, and after he got off a piece, he said: 'She did steal potatoes. You all have been stealing.' He then went off across the field.” To the whole of the foregoing evidence about the fuss in the morning between James Forsythe and McCaw the defendants objected, because it was no part of the difficulty at the time of the shooting; but the court overruled the objection, and defendants excepted.
The court instructed the jury as follows: “* * * (5) If the jury find and believe from the evidence that on the day of the difficulty the prosecuting witness was at his house, on a place of which he had the lawful possession as a tenant, and that the defendants came into such inclosure so rented by him, and then and there commenced an attack on David McCaw, or to violate his rights as such tenant, by insisting on or trying to divide a certain potato crop against his will, then said McCaw had a right to command said defendants to leave said premises in a lawful manner, and to remove them, if necessary, using no more force than was necessary; and if said McCaw only used such force as was necessary, and in a lawful manner, then this would not justify defendants, or either of them, in attempting to shoot or kill him. But, if the jury find and believe that, under an agreement with James Forsythe prior to his going on such place, said McCaw agreed to plant and cultivate certain land, to be furnished by said James Forsythe, with potatoes furnished by Forsythe, and to give said James Forsythe one-half of said potatoes, and each party had the right to use said potatoes for eating, and that said Forsythe had not given or granted the exclusive use or possession of this potato land to McCaw, and that on the morning in question Forsythe and his son were there to divide the potatoes, they were there for a lawful purpose, and, unless they commenced the difficulty, then McCaw had no right to assault them, or either of them; and if they, or either of them, only assaulted said McCaw after he began the assault with a dangerous or deadly weapon,--a club,--then defendants had a right to defend themselves, and you will acquit them or him as you may find. (6) If the jury find and believe from the evidence that witness McCaw began and brought on the difficulty on premises of which he did not have the exclusive right of possession, and assaulted James Forsythe with a club, a dangerous or deadly weapon, and that Ed Forsythe, his son, shot at said McCaw to prevent great bodily harm befalling his father or himself under the circumstances, then he is justifiable in shooting to protect his or his father's life, and you will acquit him.” To the giving of the foregoing instructions defendants, at the time, excepted.
The prosecuting attorney in his closing argument made use of the following language: “Forsythe did not deny that he had accused McCaw's wife of stealing potatoes. Forsythe had been down there before raising the devil with Mrs. McCaw, and, when McCaw came home, his wife told him, as a good, dutiful, virtuous wife should do, that Forsythe had been accusing her of stealing potatoes. She was not like some of Forsythe's tenants' wives. He could not come it over her. I glory in McCaw's spunk for calling Forsythe to account for what he said to his wife.”
The jury found both defendants guilty, and assessed James Forsythe's punishment at a fine, and Edward Forsythe's punishment at imprisonment in the penitentiary for...
