Wright v. State

• Decision Date: 01 January 1876
• Citation: 44 Tex. 645
• Parties: WILLIAM WRIGHT v. THE STATE.
• Court: Texas Supreme Court

44 Tex. 645

WILLIAM WRIGHT

v.THE STATE.

Supreme Court of Texas.

1876.

APPEAL from Brazoria. Tried below before the Hon. A. P. McCormick.

On the 8th of October, 1875, the appellant, William Wright, and one Bud Robinson were indicted in the District Court of Brazoria county for the murder of one Nelson Seigler, on the 31st of July, 1875. Robinson was not arrested, and on the 13th day of October, the case being called, William Wright made his application for a continuance.

The affidavit in other respects was regular, and stated “He expects to prove by said witness that he was in the employ of Ward, Dewey & Co., lessees of the Texas State penitentiary, during the month of July, 1875, as a guard over convicts sent to the penitentiary.

That Ward, Dewey & Co. had a lot of convicts employed on Lake Jackson plantation, in Brazoria county, at said time, and this affiant was one of the guards.

That on the 30th day of July, in said year, one of said convicts made his escape, and this affiant, with other guards, was sent out to arrest said convict; that said witness and affiant saw said convict just before day, on the 31st day of July, riding a white horse, just such a one as Nelson Seigler was riding when he was killed.

He also expects to prove by said witness that his orders from those in authority in the penitentiary were to shoot any convict when endeavoring to escape and would not halt and surrender when called on to do so.”

The application was overruled.

The facts proven were substantially that on the 31st of July a penitentiary convict, employed on a plantation of Ward, Dewey & Co., in Brazoria county, made his escape, and that the appellant, Wright, and Bud Robinson, who were two of the penitentiary guards employed on said plantation by Ward, Dewey & Co., were sent out to recapture said convict, with positive instructions from Ward, Dewey & Co., the lessees of the penitentiary, if when they found said convict, and he would not halt when called on to do so and surrender himself, that they, the guards, should shoot said convict.

It was also in proof that during the night of the 30th they saw the convict riding a white horse, and that shortly before day, on the 31st of July, the said Wright and Robinson were stationed on a bridge leading over Oyster creek, when an individual riding a white horse rode up on the opposite side of the creek, it being too dark to see who it was; that Wright and Robinson hailed the person so riding up to stop; he failing to do so, but starting to run, both the guards fired, and the result was the killing of Seigler, who was not the convict. It was also in evidence that for several hours Wright could easily have escaped, but he, thinking he had merely done his duty, remained to take the consequences.

The charge complained of is as follows:

“The penitentiary of Texas and the labor thereof, under certain regulations not important in this case, is in the hands of certain lessees, and these lessees, with the knowledge of the political authorities, are operating said convict labor on certain plantations in this and other counties of the State, using guards and other means to prevent the escape of said convicts.

One of said convicts when attempting to escape from one of such guards actually having said convict in custody may be killed by such guard so having the legal custody of said convict, if the escape of said convict can in no other way be prevented, and such killing, if it so occur, would be justifiable homicide, and one charged with any offense therefor would be acquitted.

When an escape has been...