Les J. Ware was convicted of voluntary manslaughter, and appeals. Affirmed.
At the September, 1893, term of the Craighead circuit court, for the Jonesboro district, the appellant was indicted for the murder of George Black, on the night of April 1, 1893, and at the February, 1894, term was tried and convicted of voluntary manslaughter, and his punishment fixed at two years in the penitentiary. From this judgment of conviction he appeals, and assigns, among others, the following errors: (1) The verdict is contrary to the law and evidence. (2) Because the court erred in refusing to give instructions 1 and 2 asked by appellant. (3) Because the court erred in giving instructions 5, 6, 7, 8, 10, 11, 12, 13. The evidence shows that on April 1, 1893, between the hours of 10 and 11 o'clock p. m., the deceased, Black, who resided about 2½ miles northeast of Jonesboro, in Craighead county, was shot, and, a day or two later, died from the effects of the wound. Charles Henson, an accomplice and the principal witness for the state, testified, in substance, that, "on the night Black was shot, he [Henson], the appellant [Ware], together with Metcalf, Ballentine, Ray, Payne, Burrow, and George and Al Counce, making nine in all, assembled at an old house near the residence of Black, between 7 and 8 o'clock, and from there all went to Black's house, for the purpose of whipping him and compelling him to leave that neighborhood, for the reason that they did not want negroes residing in that vicinity. After arriving at Black's house, Metcalf and Henson went to the door, and demanded admittance, which was refused, whereupon they broke the door open, and Black shot Metcalf, from the effects of which he died a day or two later. A minute or two after Metcalf was shot, and while his companions were bearing him away, Black ran out of the house, and after running a short distance was shot. Myself and all who were with me when we went to Black's house, together with some others, were members of an organization of white caps. I do not know who shot Black. I did not. Ware and I were at Metcalf's side, taking care of him, when Black was shot. If Black had promised us to leave that neighborhood, we would not have whipped him. We did not intend to kill him, but merely to drive him away. After the shooting occurred, Ray, Payne, Ballentine, and Burrow, who lived out in the country, left Black's house and went home. I did not see them any more that night. Ware, the Counce boys, Metcalf, and myself came to Jonesboro." W. N. Fisher, a witness for the state, testified as follows: "I was in Jonesboro the night Black was shot. Between 10 and 11 o'clock, John Barnett and I were going home, and, when near the railroad crossing in North Jonesboro, we met a man coming this way on a gray horse. The rider had on a white hat. I took him then to be Les Ware, but am not certain. He was coming from the direction of the place where old man Black was killed. The man on the horse was in the street, and I was on the sidewalk. I did not see the man's face, as it was partly turned away from me. I did not notice him very much." Dr. T. H. Jones, a witness for the state, testified, in substance, as follows: "On the night Black was shot, Ware [the appellant] came to my house, and stated that he was in his office and that a messenger had come, stating that Metcalf was hurt, but he did not know where nor how. Ware came to my house at 10:40 p. m. Instead of driving my horse, as it was about time for the hack to arrive in Jonesboro from Nettleton, Mr. Ware suggested that he would go up to the square and watch for the hack. We then walked up to the square, and when on the north side of the square, near the post office, we met the hack. We called to Mr. Fisher, who was driving it, and engaged him to take us out to the place where Metcalf was. Ware, Counce, Fisher, and myself went out in the hack, about a mile and a half from town, towards Black's, when Henson hailed us from the side of the road, and piloted the hack through the woods, about a hundred yards, to where Metcalf was. I recognized Henson as one of the persons with Metcalf, and there were several others present, but I do not know who they were, nor how many there were. We put Metcalf into the hack, and came to his home in Jonesboro. He was shot in the stomach with a charge of shot varying in size. While we were at Metcalf's house, the defendant, Ware, being present, I urged Metcalf to tell us all that occurred, and who was present. He said that he belonged to a band of white caps, and they had been out that night and had visited old nigger Black. Speaking to the appellant [Ware], Metcalf said: `Les, I was out with the gang of white caps, and got shot by a nigger, and know I must die, and I sent for you, as my attorney, to tell you of some business matters that need attention. I want you to look after some accounts due me, and when collected pay them to my wife.' Following this, Metcalf detailed to Ware some matters that he wanted
him to attend to. Ware [the appellant] joined with me in urging Metcalf to relate all the circumstances. When Ware came to my house at 10:40, he was smoking a cigar, had his pen behind his ear, and was dressed lightly." There was much other testimony tending to show that Ware, the appellant, was not present at the killing of Black, the deceased, but that he was, at the time of the killing, or very near that time, in the town of Jonesboro. This testimony tends to conflict with that of Henson, the accomplice. The testimony of Charles Henson, as taken before the coroner's jury, was introduced, and it tends to show that after Black was shot the appellant, Ware, went from the scene of the tragedy to procure a physician to attend Metcalf, who had been shot by Black. There was also evidence tending to show that when Black fied, after having shot Metcalf, the appellant ordered those with him to shoot Black, or to kill him.
The court gave to the jury the following instructions, which were excepted to at the time, and the giving of nearly all of which are insisted upon as error, but the court has not deemed it necessary to discuss any of them but the tenth:
"(1) In this case the defendant is indicted for murder in the first degree. The indictment alleges that he killed and murdered George Black, in this district of Craighead county, by shooting him with a gun. Under this indictment, the defendant may be convicted of either one of three different grades of homicide, if the proof be sufficient; that is to say, he may be convicted of either murder in the first degree, murder in the second degree, or of voluntary manslaughter, if the proof be sufficient to convince the jury that he is guilty of either of these different degrees of homicide.
"(2) No one has the right to take the life of another unless he does so in self-defense, or in defense of his home, property, or of persons under his protection. There is no such justification claimed in this case, but the defendant, by his plea of not guilty, denies that he either killed or aided and abetted any other person in the killing of George Black; and the first question for the jury to determine is whether George Black was unlawfully killed in the manner alleged in the indictment, and, if so, who it was that committed the act, and whether the defendant either fired the fatal shot or was present, aiding, abetting, advising, or encouraging others to commit such act.
"(3) The witness Henson, who has testified in behalf of the state, admits that he was an accomplice in such crime, and the law requires that his testimony should be corroborated. A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances thereof. There must be some fact established by the evidence, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the defendant, Les J. Ware, was implicated in it. The fact that other witnesses may have given testimony which agrees with that of the accomplice will not constitute a sufficient corroboration of the accomplice, unless such testimony tends to identify the defendant as one of the parties participating in the crime.
"(4) It is not necessary that there should be other evidence sufficient of itself, without the testimony of the accomplice, Henson, to warrant a conviction, but it is sufficient if, in addition to his testimony, there be evidence tending to show that the crime was committed, and to connect the defendant with the commission of such offense, and if the testimony of Henson is corroborated to this extent, and if the jury are satisfied of the guilt of the defendant beyond a reasonable doubt, they should find him guilty.
"(5) All persons present, aiding, abetting, or encouraging the commission of a criminal act are in law as guilty as the person who actually commits such act, and if the jury are satisfied from the proof, under the law given by the court, that the defendant was present, aiding and abetting, advising or encouraging the unlawful killing of George Black, it will follow that they must find him guilty of one or the other of the grades of homicide mentioned above. It will be, therefore, necessary for the jury to understand the...
