88 Tenn. 183 | Tenn. | 1889
There is very much of human life involved in this case. The plaintiffs in error are under sentence of death for the murder of Ilenly Sutton, having been convicted in the Circuit Court of Hancock County. There are five of them: John (known as “Big John”), Anderson, and Elisha Barnard, who are brothers, and their cousins, John (called “Little John”) and Clint, who are also brothers. They have appealed in error to this Court, and through eminent counsel seek a reversal and new trial.
Of the many reasons urged for a new trial, we consider first the contention that the verdict is not sustained by the evidence. .
That the prisoners, or one of them rather, took the life of Sutton, is not by them disputed; but it is -boldly asserted by them in their evidence, and strongly urged by their counsel in argument, that it was done in self-defense.
The State’s theory of the homicide is that ,it was deliberately planned, and perpetrated while lying in wait.
The character of the prisoners for peace and quietude is not shown further than it appears from their conduct in this case, and from their own testimony that they had serious .difficulties with “ the Eurgersons ” twelve months, and with “ the ’Winclders” six months, before the death of Sutton, in which two difficulties they say “ shooting was on both sides;” and since the latter of which they have habitually carried repeating Winchester rifles, as they themselves testify.
The first fact or circumstance presented in this record as an indication of unfriendliness between Sutton and any of the prisoners, is detailed by “Big John” himself, as follows: “I was out hunting one night; had a light, and somebody shot at me. I did not know then who it was, but' have since learned that it was Sutton. I heard the balls strike, and threw down my light. * * * It was five or six years ago that ■we were shot at while hunting.”
Noah Sutton, who was with “Big John” on the occasion just mentioned, says that they were out hunting, “ and while in the woods, near ILenly Sutton’s, some one fired three shots, I supposed
Tillman Sutton, who, as well as the last 'witness, was introduced by the prisoners, gives this account of the matter, namely: “ I am a son of Iienly Sutton, deceased. Some six years ago we heard some one hallooing and cutting up, and father and I went out to where we could see, something near one-fourth of a mile from the house, and saw two boys with a light. * * * Father shot twice, but not in the direction of John Barnard and Hoah Sutton. He fired the shots down the bottom.”
For the purpose of showing subsequently existing and continuing ill-will on the part of Sutton, the defense introduced Hoah Mills, a kinsman of all parties, who testified that, while at Sutton’s still-house about three years before the trial, Sutton picked up a big pistol and said if “Big John” Barnard did not “ quit fooling ’round there he would empty it into him.”
The witness makes no explanation of this threat, and gives no reason for it. Hone is shown in any part of the record, nor does it appear that the threat was ever communicated.
The firing of the shots in the night-time is sufficiently explained by the quotations given, which make it apparent that the deceased intended only to frighten the hunters away, and not to harm them.
To show their exact character, we give his accusations and threats somewhat in detail, and substantially in the language of the witnesses. George Barnard, an uncle of the defendants, says: “ I had a talk with Sutton about the hog matter. He accused ‘Big John’ and Vina’s John [Little John] of cutting his hogs. They denied it. I talked to Sutton to try to get the matter settled. Sutton said he did not fear living man, and if they" got at it the river would not be between them.”
Anderson Barnard, a son of George Barnard, says: “Sutton told me that ‘Big John’ and Vina’s John had cut his hogs, and that a man could not do him that way and live.”
'William Cook testified tliat Sutton told Mm “Big John” Barnard cut Ms bogs, “and he would kill him for it.”.
These threats, or most of them, are shown to have been communicated.
“Little John” and Elisha say, that a short time before the death of Sutton, they were passing his house with a loaded wagon; that he saw them, and, taking Elisha to be “Big John,” came out to the road, “with gun and pistol, and said, ‘Hold on there, ‘Big John’ Barnard, I have a settlement to make with you; ’ ” that, on discovering his mistake, he cursed “Little John” and “Big . John,” •saying that they cut his hogs, and that “all he wanted was to see ‘Big John,’ the black-hearted rascal, he would settle with him.” All this was reported to “Big John” soon after it occurred.
Wiley Cozart claims to have heard Sutton say that .“Big John” Barnard had cut his hogs, and that he would kill him for it “ at all hazards, and would ' give any man fifty dollars that would get him on the road between the still-house .and G-eorge Barnard’s; that .he had the tools to • do it with,” at the time exhibiting a Winchester rifle.
Speaking of a different time, Zora Harvey says: ■“He [Sutton] told me if I would bring ‘Big ■John’ Barnard between the still-house and George
The two last alleged statements are not shown to have reached the ears of the defendants before the trial in the Court below. The witnesses making them were impeached upon their general chai’acter by one witness each, and sustained by none. On cross-examination the witness impeaching Harvey shows that he does so on insufficient grounds.
Notwithstanding these threats, some of them very violent in their nature, it is not in fact shown, or attempted to be shown, that Sutton ever left his business, or went out of his way at any time, to seek a meeting with the defendants, or any one of them. And it is at least probable that he had changed his mind as to the identity of the perpetrators of the offense complained of, as will appear from facts now to be narrated.
The State’s witness, John F. Mills, who was a friend to Sutton and a cousin of the prisoners, makes the following statement: “A few weeks before the killing I was talking with Sutton about the' hog cutting, and told him I didn’t believe ‘Big John’ had cut his hogs. He said he had about come to believe that too, and that if ‘Big John’ would make affidavit that he didn’t do it, he would have nothing against him. I told him I would go and see him [Big John] about it. The next day I went to see ‘Big John’ Barnard to get the difficulty fixed up. Barnard
In his testimony “Big John” says: “Sutton accused me of cutting his hogs. I did not do it, and offered to go before a Magistrate and file an affidavit that I did not do it.”
Touching the same subject, Prior Barnard, “Big John’s” father, says: “I knew of John Mills coming to have John go and make the affidavit about not cutting the hogs. I told John hot to go to make the affidavit, that it was a plan to get him killed.”
The affidavit was not made.
In stating the facts and circumstances leading up to the homicide, and ás indicative of his state of mind, it is proper to note that “Big John” Barnard, particularly, became very angry at the charge made against him, and at one time went into Sutton’s neighborhood to investigate the report, and perhaps to do more than that.
The State’s witness, Clinton Leyer, says that he met the prisoners at his mother’s house, one mile from the home of Sutton, in the forenoon of the last Monday before Christmas, 1888; that four of them were then armed with "Winchester rifles; that “Big John” called him to the fence, inquired and complained about the report; seemed to be very “ mad,” and wanted “ to get the matter straightened out.”
Thomas Sutton, another witness for the State,
The same witness further says: “As I' came up to them I saw ‘Big John’ Barnard going along the fence, apparently about half bent. He raised up as I came up. They had guns. * * * Some people say that I resemble Iienly Sutton. He was my cousin.”
“Big John” admits that he saw the last two witnesses, at the' times and places mentioned by them, but disclaims any purpose then to do violence to Sutton, saying, rather, that it was his desire to talk with other persons. The fact was, that he and his companions returned to their homes that time without meeting Sutton, or having an adjustment of the matter they had so much at heart, and which had brought them into Sutton’s neighborhood, and upon this particular road, in the forenoon of this particular day.
Defendant Clint Barnard seemed to understand the situation, aird to know the state of “ Big John’s” mind, when he said to Clinton Leyer, at
Sutton owned and operated a licensed distillery on the north side of Clinch River, in Hancock County, and resided three and a half miles away, on the same side of the river. It was his known ■custom to spend Sunday at home with his family, .going to his distillery Monday morning and returning to his home Saturday evening. Late in the .afternoon of Saturday, January 12, 1889, while- on his way home by his usual route, and when one mile and a half from his distillery, near a small ravine and in a narrow valley between two hills, he was sh'ot from his horse and instantly killed.
All of the prisoners, except Clint, lived on the south side of Clinch River, some five or six miles from the place of the killing, and Clint lived with his mother, Yina Barnard, on the north side of the river, about four miles from the fatal spot.
Nearly three weeks, after their fruitless visit into the neighborhood of Sutton’s home, on the last Monday before Christmas, they went again into the same neighborhood and upon the same road with very different results.
Early in the afternoon of Friday, the day before Sutton met his death, “Big John,” Anderson, Elisha, and “Little John,” each armed with a re
Betioeen daylight and sunup next morning they left their cousin’s home, and went out a short distance into “ Troublesome Ridges,” a range of hills or ridges which were situated along and within the curve of the road between Sutton’s still-house and the point at which he was killed. On these ridges, from which parts of the road mentioned are in easy view, the prisoners quietly spent the day, without dinner, and, as they say, without seeing any one save their said cousin, Anderson, and his
When Sutton reached the narrow valley already mentioned, shortly after 4 o’clock in the - afternoon of that day, going along the road in the direction of his home, the defendants were there, and in the shortest time the fatal work was done by one or more of them.
This narration of what they did and where they went, from the time of leaving their homes until Sutton’s death, is taken from statements made by the defendants themselves while on the witness-stand. Their explanation of their wanderings is that their uncle, George Barnard, was sick, and had sent word to his brother, Prior Barnard, on Tuesday or Wednesday, and again on Friday, claiming a visit from him; that, because he was not right well himself, Prior asked his son, “ Big John,” to make the visit for him, which the latter agreed to do, and for that purpose set out, with his two brothers and cousin, “Little John,” in the afternoon of the latter day, as before stated. They further say that when they reached the home of their cousin, Anderson, that night, he informed them “that his father [their sick uncle] was better, and that they were crowded, had plenty of company, and that we could ' stay with him,” which they did; that Clint told them (the other defendants) that night that he had heard that Mary Lawson, a woman of bad character, was over in “ Troublesome Ridges,”
Their Uncle George, whom the defendants claim to have started out to visit in the first instance, lived on the road so often mentioned hereinbefore, about one-half mile from the scene of the homicide, back in the direction of Sutton’s still-house, in sight of and about one hundred yards from the house of his son Anderson.
George Barnard and others show that he was, in fact, sick at this time; and Samuel Davis says he communicated the fact to Prior Barnard on Friday before the homicide. Prior Barnard states that he received the information from Davis, and thereafter requested his son, “Big John,” to go to see his sick brother for him; and Anderson, a son of George, says that he induced the defendants to spend Friday night at his house by the state-
To this extent the explanation of the defendants is coi’roborated. But why so many of .them should have gone on this friendly mission at the same time, four of them heavily armed, is not ■ satisfactorily explained by the defendants themselves, nor anyone else. RTor is it natural that they should have gone away from their cousin’s house the next -morning, and wandered in the hills all day without calling ' to see their sick uncle, who lived only one hundred yards from the place where they spent the night, if a visit to him was the prime object of their coming into the neighborhood.
The mission was so pressing that they must travel several miles in the night-time, and on foot; yet, when a new day dawned upon them, in sight and hearing of their sick kinsman’s house, without calling even a moment to assure him of their own interest in him, or to deliver a message of sympathy from an affectionate brother, who had sent them, they go out upon the hills,' whose tops command successive views of the road, upon which their victim was soon to travel. Would it not have been more natural — if their conteiition is the correct one — for the defendants to have visited their uncle at the first opportunity on Saturday morning, and then, with all reasonable expedition, have carried the good tidings of his improved condition to his brother, Prior, who had inspired the brief journey,
There is much conflict in the testimony with respect to the immediate facts of Sutton’s death. The first and leading witness for' the State was John E. Mills, who, as has already been seen, was a cousin of the defendants and a personal friend of the deceased. He was “ store - keeper and gauger ” at Sutton’s distillery. He says: “ Sutton’s custom was to leave his distillery for home Saturday evening and return Monday morning, and I usually went to and fro with him. On Saturday, January 12, about 4 o’clock P.M.,. we left. I left the still-house with Sutton, on horseback, * * going in the direction of Sutton’s house, and he said he had started home. "We had got one and one-half miles, and were riding along side by side, some four or five feet apart, he on my left side, when I heard a gun fire. My horse jumped, and I looked back, supposing Sutton’s gun had fired, and saw Sutton falling to the ground from his horse. He was just about straight on the ground. I then looked down the road in the direction we were going and saw smoke rising about four feet above and over a log that lay at right-angles to the road on the left, and between two beech trees that stood on the side of the log next to me; and then I saw ‘Big John’ Barnard, one of the defendants, coming from the end of the log next to the road and crossing the road to the right side from me; and saw Anderson Barnard, one of the
Mills further says that Sutton was. armed with a Winchester rifle and a 44-caliber Smith &• Wesson pistol at the time he was killed, and that he was accustomed to go armed in this way; that when he “last noticed Sutton before -the shooting he was carrying his gun in his right-hand and across his right thigh.”
The next witness called by the State was Elbert Leedy, the same person seen, by Mills on horseback beyond the log, and the same seeii and mentioned by all the defendants. ITe says: “ I had been to Sutton’s still-house on the day of the killing, and left there about 4 o’clock and started
Marion Lewis, who was attracted to the ‘scene by the report of the firing, and who noticed the defendants going away as he approached the dead body of Sutton, testifies: “ Four of us made an examination of the log. A foot-path crosses over the log near the roots. Saw a limb lying upon another limb, looked like it had been fixed for a rest at a place where it lay off* of the ground about eighteen inches, and near the middle of the log. One large limb lay on the ground at right-angles to the log. Another smaller one, about the size of my leg, lay under and parallel to the log, with one end lying on the large limb and the other on the ground. I saw fresh dirt on the under side of it as if it had recently [been] picked up off of the ground and laid there. I saw, in four different places by the log, signs which looked like signs of men; looked like men had tramped around, but saw no -whole tracks. It looked as though the leaves and dirt were moved and tramped down. * * * The first sign was near the root of the log, and looked like where a person had stood and tramped and patted the ground down with his feet. The next was at the rest I have described, some ten or twelve feet farther down the log, near its center. I saw here
Sutton fell and lay on his back at right-angles to the road, with his head near the edge of the road and his feet his full length from the road. This statement is made here in explanation of the last three sentences quoted, and to show that a man on horseback at Sutton’s feet might not be seen from “ the rest,” when one so mounted at his hips or head might be in full view from that place.
John Winkler was one of the first persons' to
At the time Sutton was shot he was returning into the road, having just ridden slightly to the left “ around a mud-hole.”
¥m. B. Davis, a practical land smweyor, who went upon the ground and made a map of the road, states: “ I saw a man on a horse, and he ■rode around the mud-hole and turned into the road, and from supposed rest, about middle of log, he was in plain view.”
"Wm. Standeford says: “I found a cartridge shell behind and near the beeches, and on the •opposite side of the log from where Sutton was killed, some days after the killing. I found it not more than three feet from the log, and •nearly straight behind the beech nearest the road. •* * * It was somewhat covered up in dirt ■and leaves.”
The witness produced the shell in Court. Upon •examination of it, the fact appeared that it was a •88-caliber 'Winchester rifle cartridge shell, corre-
Dr. Stone, who examined Sutton’s body at the time of the Coroner’s inquest, thus describes the wounds: “ One shot had entered the body a little to the right of the left nipple, and was cut out about two inches to the right of the backbone. I saw a wound on his right shoulder, and three wounds on his right arm, and one that had entered his right temple and come out near and behind the left ear.”
The character and direction of these wounds, together with the position ,of the body after it fell from the horse, demonstrate the fact that the first one mentioned was fatal, and that the others were inflicted while the body lay upon the ground.
To bring knowledge of Sutton’s movements home to the defendants, the State introduced Clinton Leyer, who said: “I was rafting on Wednesday or Thursday before the killing on Saturday, and defendant, Clinton Barnard, was there, and, in a conversation about the hogs between us, he asked me if Sutton didn’t come home on Saturday evening and go back on Monday morning, and I replied he did. I do not remember who commenced the conversation between us. My brother, Marion Leyer, was there. We were talking about the difficulty most every time
Marion -Leyer says: “ I beard defendant, Clint, ask my brother, at the raft, if Sutton did not come home every Saturday evening and go back to the still-house every Monday morning, and he told him he did. I also heard him say then that ‘Big John’ wouldn’t make affidavit.”
The defendant, Clint, says, in effect, that he does not remember, making the inquiry of Clinton Leyer; but it is nowhere controverted that the' defendants knew the truth of the matter inquired about.
The first testimony offered by the defense was given by the defendants themselves. .Already we have stated what they say up to the time they reached their cousin, Anderson, at the fence about one hundred yards from the fatal spot. Their testimony with respect to what occurred thereafter can best be presented in their own language.
“Little John” says: “¥e came over where Anderson was, and while we were standing there Elbei-t Leedy passed down the road. "We then stai’ted over to the road. Anderson said for us to go on, he would come, and as we went down the hill Clint stopped on the hill; said he had to step aside. Myself, Prior’s Anee [Anderson], Elisha, and ‘Big John’ went on down toward the road. John got to the road first. He asked me who that was going down the road. I replied, Elbert Leedy. I thought I heard horses’ feet and looked
Taking up narrative at same point, “Big John” says: “I saw a man passing the road. It was Elbert Leedy. We went to the road, down along the fence. I crossed the marsh at the foot of the hill on an old log; stepped upon a mossy bank; heard John say ‘Lord have mercy!’ I looked; saw Sutton raising his gun. I shot. I had not seen Sutton before, that day. I shot six or seven shots. Mills was with Sutton. I shot two or three shots before Sutton fell from his horse. * * * We kafi not been at the road until after Leedy passed. Clint had stopped on the hill. * * * I went home from there, and went
Clint says: “I stopped, to step aside, and the other boys went on down the road. I saw a man pass down the road in a trot, riding a gray
Elisha next states: “As we came down to the road I saw Elbert Leedy pass down the road on a gray horse. ‘Big John’ got to the road first. I heard horses’ feet; looked up the road and saw Mills and Sutton. Sutton was raising his gun toward ‘Big John.’ I heard Vina’s John (‘Little John’) say ‘Lord have mercy!’ and we ran across the road, and ‘Big John’ fired at Sutton. No one shot except ‘Big John.’ It was all done quick. We did not go there to meet Sutton; did not expect to meet him. * * * We did not get behind the log, and there was no shooting done from about the log. * * * ‘Big John’ can shoot as quick as anyone I ever saw. I have seen him turn on his heel and
Anderson, the other defendant, testified as follows : “We went on down the hill. ‘Big John’ got to the road first. I was looking down the road at some one that had passed. I heard Vina’s John say ‘Lord have mercy!’ I looked up the road; saw John Mills and Henly Sutton coming down the road. Sutton was raising his gun to shoot, as I thought. He was raising - it toward ‘Big John,’ and John fired. We did not go there to meet Sutton. * * * No one shot but ‘ Big John.’ * * * He moved as he fired, sorter in the direction of Sutton. * * * We did not go to Sutton after he was killed. * * * The reason we came down to the road to go to Alice’s (Anderson’s) and Uncle G-eorge’s was there were briers and bushes the other way, and it was steep. ‘Big John’ is the quickest shot I ever saw. He could turn on his heel and hit a tree not more than a foot thick forty or fifty yards. I have seeii him do -it with his
As corroborative of the statements made by the defendants on the main point, we give the language of their cousin, Anderson,. namely : “ I was not quite done my fence, straightening it up and putting the -brush on, * * * when the boys came to me in the evening. Leedy passed before defendants went to the road. I told them to go on to the house and get some dinner, that I would come. * * * From the place where I was I could see all along the road from the log to above where Sutton fell. I saw Sutton and Mills just as they came to where the branch crosses the road. Sutton turned on his horse to the left around a mud-hole; he was in the path. The boys were just -getting to the road. I saw Sutton raise his gun. Then John (‘Big John’) shot. From where I was I could see both parties; nothing to obstruct my view. I saw Sutton raise his gun. He had it -in his right-hand; was bringing it to his shoulder. * * * I saw his horse throw his head up, as if jerked, just as Sutton raised his gun. I saw no one shoot but ‘ Big John.’ He shot six or seven times very rapidly. * * * I was also arrested on a charge of the murder of Sutton, but was discharged by the Magistrate.”
Marshall Manus says: “Could not see place where body lay from the rest for the bank that was near to beech.”
Isham Sutton states: “A man could not be seen on a horse at the place pointed out to me where Sutton lay from the supposed rest. I could not see a man on a horse from the rest, nor could I see him when I stood on my feet. The view was cut off by a bank on the right side looking from the log.”
McH. Ross says: “As shown, a man on a horse where he was shown to have lain could not be seen from the limb under the log.”
And finally, 0. Id. Coleman, one of the counsel for the defendants, who examined the locality with the four- preceding witnesses, and made a map “ some two or three weeks ” before the trial in the Court below, testifies: “A man was placed upon a horse where the middle of Sutton’s body was said to have been, and I looked from the supposed rest at the log and could not see him. I tlien stood up and could not see him.”
Without an elaborate discussion, some further comment will be indulged before we give expression to our conclusions from the whole body of the proof. In doing this we begin with the question last mentioned, which seems to have been a matter of unnecessary solicitude in the Court below.
The conflict in the evidence with respect thereto may be reconciled, and yet give every witness credit for speaking the truth, by the natural and reasonable assumption that the observations whose results are detailed, were made with the horse and rider at one time in a slightly different place from that occupied by them at another, the hill being so near the road as to entirely obstruct the view in one place and not at all interfere with it at another, only a few feet away. No doubt this mode of reconciliation was adopted by the jury, for none of these witnesses were impeached, and there is no positive proof that the position of “the person on horseback” was precisely the same when some say he could not be seen as when others say he could be seen. Of all the witnesses speaking to this point, Mills, confessedly, knew best where Sutton was at time of first shot, and he says a man could there be seen from the rest. Be this as it may, the question is an unimportant one. Whether Sutton could or could not be seen from the rest at the fatal moment can neither
The witness, Ross, while stating that a man on horseback where Sutton is supposed to have lain could not be seen from the rest, says “ he could be seen from the beech,” and that “the road could be seen one hundred and fifty yards, looking up the road from the beech.”
Stand eford says he found the cartridge shell “ not more than four feet from the log, and nearly straight behind the beech nearest the road.” So
Were the defendants lying in wait? Was the first shot fired from behind the log, as contended for the State, or from the mossy bank across the road, thirty to forty feet from end of log, as contended by the defendants ? This is a vital question, and about it there is much dispute.
All witnesses agree, substantially, as to the position of the log and the mossy bank with respect to each other, and with respect to the place at which Sutton was killed. So all agree that one shot was fired from the • mossy bank. Mills and Leedy say that was the second shot, and not the first, while the defendants, say it was the first.
Mills and Leedy give a detail of facts about which they could not be honestly mistaken. Hearing the report of a gun, Mills says he first looked at Sutton and saw him falling from his horse, and then looked ahead to learn the cause, and saw the'smoke by the log and “Big John” emerging from behind its end and crossing the road to the mossy bank. Leedy, who was two to three hun-
They could not have been deceived about what they swear they saw and heard. They are neither interested nor impeached. Their testimony is freely and frankly given, nothing being withheld, so far as we can see, that might benefit the defendants, to whom Mills is related, and with whom he 'is on friendly terms. Their statements are reasonable in themselves, consistent with each other, in accord with undisputed physical facts, and strongly corroborated in many important particulars.
That there were four fresh signs of men behind the log, and what seemed to be a rest under it, is positively and circumstantially sworn by several reputable witnesses, and disputed by none. These signs and this supposed rest are accounted for, in this record, solely and alone upon the theory that four of the defendants were behind the log and made them. Neither is the finding of the cartridge shell behind and near the log accounted for, unless it be true that it was there dropped from the gun after the first shot, and when preparation was being ■ made for a second one, the expulsion of the empty shell and the substitution of a loaded one being accomplished at one and the same time by the easy movement of a lever on the gun for that purpose. That an empty shell was previously
Furthermore, it is stated by Mills and Leedy, and by all the defendants as well, that from the first shot on the mossy bank all the others followed “m rapid succession.” Concerning this there - is no disagreement at all. The conflict is as to what preceded the first shot from that place. Mills and Leedy say there was one report, and that, after awhile, when a man (“Big John”) had passed across the road to the mossy bank, the firing began again, and continued at very brief intervals to the end; while the defendants say that when* the firing once began it was kept up without interruption until the work was done, “Big John’s” language being, “I shot as fast as I could.”
Now, that there was some considerable time elapsing between the first and second shots; enough for a man to walk from the end of the log across the road to the mossy bank, as Mills and Leedy say the fact was, is manifest from what two other witnesses testify. Marion Lewis says he and his wife heard the first shot; that he said to her, “ That was a rouser,” after which they “ talked a little about it, and then heard several- shots fired in succession.” ¥m. Trent, who was traveling on the same road, behind but not in sight of Sutton and Mills, says: “ I heard a shot fired on before
That Leedy did not see the defendants and his liorse did not shy at them when he went by the log down the road, by no means proves that they were not behind the log, and that he did not, in fact, see three of them there immediately after the first shot was fired, as he says he did. They may have been by the log in a stooping posture, ■as they naturally would have been if there at all, and thus escaped his observation, especially as he was riding fast and looking -ahead and not to the side, as he expressly swears 'was the fact, and as the defendants admit, so far as the riding fast is concerned. Or the defendants, seeing him for one hundred and fifty to two hundred yards before he reached the log, as they could and certainly would have done, if there could .easily have concealed themselves behind the uplifted and spreading roots of the log itself, which are shown to have been amply sufficient for that purpose.
Besides its direct antagonism to well-established facts, the testimony of the defendants is inconsistent in itself. Of the manner in which the defendants account for being at this particular place at this very opportune and auspicious moment; of
To their subsequent statements we give more extended notice at this point. Is it not strange, that, with innocent purpose and without any sign or motion attending “Little John’s” exclamation, “Big John,” who says he was looking down the road, should have turned immediately at the word and shot Sutton from his horse? Is it not stranger still that he should have been able to do so, raising his gun from his side and putting the ball with unerring aim so near the heart before Sutton, whose presented or rising gun had caused the exclamation, could fire at all?
There was no inquiry or explanation as to what “Little John” felt or saw; the exclamation was its own interpreter, and “Big John” wheeled and fired without delay. There was no reason why Sutton should not have fired first, if he had his gun presented as “Little John” says, or was presenting it, as other defendants say, when “Little John” cried, “Lord have mercy!” that exclamation being the first thing to attract “ Big Johnis” attention, as he himself says.
Is it not also unreasonable that a man shooting
“Big John” attempts to palliate this feature of the case by saying he fired two or three shots before Sutton felfi from . his horse. In this he arrays himself against the manifest truth of the matter. His co-defendants, even, do not pretend to sustain him on this point. Clint says he looked, immediately after the first report, and saw Sutton’s riderless horse standing in the road. Mills says Sutton fell at first shot, and all the proof shows such to have been the fact. Ho one but “Big John” states or intimates the contrary.
The claim of defendants that the firing commenced about the time they reached the road, and that Sutton had his gun presented when “Big John” fired the first time, is in accord with the testimony of their cousin, Anderson, who alone corroborates their statement.
He says: “ I saw Sutton raise his gun. Then John fired.”
"When it is remembered that this ' witness was at one angle of an almost equilateral triangle, with Sutton and “Big John” respectively at the other angles, and the sides being from seventy-five to ninety-seven yards in length, it must seem to have been something of a stretch of vision for him to see the movements of both at the same moment;
The probability of such a sweep with the eye, at this very instant of time, would seem much greater, if, for any reason, the witness had previously made up his mind to make the observation, and was actually on the lookout, to see what would occur, or to give a signal for any purpose.
Though not directly impeached, this witness is a kinsman and friend of these defendants. Finding them in great need of corroboration at this point in their case, knowing their theory, and naturally smarting under the imputation cast upon him by his own arrest before the Magistrate, on a charge of complicity with the defendants in the commission of this very homicide, it is not unlikely that he gave some play to his imagination while upon the witness-stand, or, at least, that the jury so thought.
That “Big John” voluntarily surrendered himself to an officer of the law, and boldly confessed the homicide, is not a fact of much importance, as affecting his guilt or innocence. He knew that the act was witnessed by Mills, and may have chosen the alternative of surrendering rather than flee the country. He confessed nothing that was not already known. Of course no one can go into his thoughts and with certainty determine
It is said that the theory of the defense may be aided by the position of Sutton’s body and gun as they lay upon the ground, and the condition of the gun when found. Marion Lewis, one of the first persons to reach the place after the defendants had gone away, says: “ Sutton was lying on his back, with his head at edge of road, and body at about a right-angle to the road, his right arm extending out from Ms body, and left arm drawn up and bent at elbow, the hand being toward the head. Ills gun was lying near his left shouldei’, the muzzle passing the head, and the breech near his left arm obliquely to the road. * * * I think Sutton’s gun was cocked, and I saw Sampson Williams let the hammer down.” John Winkler says: “The hammer of Sutton’s gun was pulled back. The gun was on the left side of Sutton, with the muzzle toward the road.”
We see but little, if, any, importance in the position of the body and the gun, since we know no rule, and have no expert testimony by which it can be determined on which side of the body
If the gun was in fact cocked, so as to be ready for shooting, that would be a circumstance of some significance, but . if only half-cocked, that would not' be so. The witnesses. just mentioned seem not to have had their attention called to the difference between cocked and half-cocked, and in their language they make no distinction between the two. One of them says he thinks the gun was cocked, and that he saw the hammer let down. The other says the hammer was • pulled back. How far it was pulled back neither of them says; yet, whether the gun was cocked or half-cocked, in either case the hammer would be -pulled back to some extent, and could be let down.
“Big John” says he “sometimes carried” his Winchester “half-cocked;” and Grant Jarvis, speaking of such rifle, says: “ The gun is usually carried at half-cock, the hammer being pulled back to safety-notch.”
It will be remembered that Mills left the defendants near the body of Sutton. ILe says they agreed to stay awhile. They say they made no such agreement, but admit that they did, in fact, remain a short while after he left. Giving his own language, Mills further says: “ When I left
A fundamental inconsistency in the claim of innocence on the part of the defendants is found in the fact that they were -on this road at all
John Ratliff, who is in no way impeached, says he saw four or five armed men, between 10 and 12 o’clock that day, “ coming up toward top of ridge about half-way from still-house to George Barnard’s;” that he heard one of them say, “We will go over to Uncle George Barnard’s; or on the ridge opposite Uncle George Barnard’s; ” and the same • witness further says that “ at different points along top of ridge you could see parts of the road all the way from still-house to place of hilling.”
Why should these defendants spend even these four hour's .(conceding that they had previously been further away hunting Mary Lawson, as they
"We believe they were watching for Sutton’s approach, besetting his pathway for the purpose of taking his life. Their own testimony, though denying, goes far to confirm this conviction in our minds.
That Sutton, on horseback, should have first presented his gun and attempted to open fire on four well-armed footmen, all in sight, as they say they were, involves the highest degree of improbability. To have done so would have been to invite certain death. But, if they were lying in wait for the purpose of taking his life, as we believe the proof clearly shows to have been the real situation, and he, discovering them, attempted to fire, that would in no sense mitigate their crime in killing him in pursuance of their original design. In this view it matters not in what position or condition his gun was found after his death, or in what position he held it when shot.
Regretful as we may be, and as we are, that it is so, the verdict of the jury is sustained to our entire satisfaction.
First. — After verdict, and on same day, motion for new trial was entered and continued until next morning. When next morning came, counsel for defendants made successive motions to continue the motion for a new trial until the -day after, or until the afternoon of the same day, both of which the Court refused, “ unless good ground was shown on affidavit,” whereupon one hour’s time was asked for the preparation of such affidavit, and this was refused, “ unless some ground for delay to write affidavit” should be shown or stated. Because “ no grounds or reasons were mentioned or offered by said counsel, and nothing being stated in reference to any ground or reason for delay, or stated as to what was to be stated in said affidavit, the Court stated that ample time had been given already, so far as he could see,” and, after argument, overruled the motion for a new trial.
This action of the Court is now assigned as error. "We think it is not error, but most manifestly right. No affidavit was pi'oduced, and no .-fact was stated that was desired to be placed in an affidavit, nor was any thing stated “in reference to any ground or reason for delay.” Further in- • dulgence was not required by any rule of law or practice, in the absence of any statement or intimation of any known or suspected fact to the advantage of defendants, or that any investigation was being made or contemplated.
On this point the Court said to the jury: “ Self-defense, therefore, rests upon necessity, actual or apparent. A common assault, not actually or apparently endangering life or great bodily harm, will not excuse a homicide in repelling it. But to excuse a homicide the danger of death or great bodily harm must be real, or honestly believed to be so, and on reasonable grounds. The danger must be apparent and imminent, and existing at the time of the fatal injury, or honestly believed to be so, and on reasonable grounds. The .belief or apprehension of danger must be founded on sufficient circumstances to' authorize the opinion that the purpose to kill or do great bodily harm then exists, and the fear that it will at that time be executed.”
This extract correctly states the law, and in every sentence, as is readily seen from the italics, which are ours, the Court distinctly repudiates the idea that a homicide can be justified, or self-defense
The language is almost precisely the same as that used by this Court in Rippy v. The State, 2 Head, 218, and approved in other cases: 3 Heis., 394; 4 Bax., 252; 6 Bax., 457; 5 Lea, 369; 6 Lea, 257.
No particular complaint is made of what we have quoted, standing by itself; but the main criticism is of what followed. In a subsequent part of the charge, when the Court came to apply the law more directly to the facts of the case, the jury were told, in substance, that the defendants would be guilty of no crime if the fatal shot was fired “under a well-founded belief and apprehension” of death or great bodily harm, but that they would be guilty of some offense if the shot was fired “from any other feeling than a well-grounded fear or apprehension” of such danger. The objection is made to the words “well-founded” and “ well-grounded.” It is urged that their use ■was improper, erroneous, and well calculated to mislead the jury and make the impression on their minds that they must find that there was in fact danger of death or great bodily harm before the defendants could be acquitted.
How such an impression could have been made (and we have no evidence or reason to believe that it was made) by the language used, it is difficult to understand. Certainly it has no such meaning to us, and we think it could not natui’ally
Besides, upon their own theory of the case, if the defendants had any apprehension at all, it is manifest that it was well-founded, and that they could in no event have been injured by the charge on this point.
Third. — In the next place objection is made to what the Court said to the jury about the necessity of an overt act.
The charge on that 'subject is as follows: “Previous threats made by the deceased against defendant will not, of themselves, excuse the de
So much of this instruction as requires an overt act at all to justify the homicide in this case, is assailed as unsound; the position being that, whatever may have been the law in former times, an overt act should not be required in this day of the revolver and repeating rifle, especially with such a man as the deceased is shown to have been.
We are aware of no change, or reason for a change, of the law on this subject since the decision by this Court of the Nippy case, already referred to, in which the language of the opinion is: “Previous, threats, or even acts of hostility, how violent soever, will not of themselves excuse the slayer; but there must be some words or overt acts at the 'time,, clearly indicatioe of a present purpose to clo the injury 2 Head, 219.
This language is precisely the same in meaning, and almost the same word for word, as that used by the trial Judge and quoted above. This is especially so as to the portion of each relating to the overt act, which we have italicised for the purpose of emphasis.
The language of the Nippy case is quoted in some and approved in all of the following cases, since decided by this Court: Williams v. The State, 3 Heis., 394; Draper v. The State, 4 Bax., 251; Hull v. The State, 6 Lea, 256; Allsup v. The
The opinion in the case last cited (Jackson’s case) may by some be supposed to have changed the rule laid down in the Rippy case; but it does not do so in fact, and was not so intended, as is readily seen from the very clear and vigorous language of the writer, the lamented Judge McFarland. He expressly recognizes the doctrine of the Rippy case as sound, and undertakes to show, and does show to a demonstration, that different facts will constitute the ever-necessary overt act in different cases; that greater demonstration of a deadly purpose is required, where the slayer and slain have previously been friends, than where they have been enemies, and the deceased has made threats against the life of the defendant. To use his own words, he says: “The necessary overt act in the one case might be different from the other. It is difficult to lay down a rule exactly governing all cases, the circumstances of the cases, differ so widely. The overt act that will justify a defendant in assuming that his own life is then in danger must depend upon the circumstances of each particular case.” 6 Bax., 458, 459.
This quotation from the opinion itself, is sufficient to refute all claim that the learned Judge delivering it could have intended to say that the overt act, theretofore required by all the authorities except the Kentucky cases, could or should be dispensed with in the administration of the criminal law in this State.
So the trial .Judge in this case instructed the jury: /‘No exact rule of law can be laid down which will govern in all cases of self-defense. Each case must stand upon its own facts and circumstances, taken together as a series of events.”
Thus we have seen that the charge with respect to overt act is strictly within the decisions of this Court, which we think entirely sound and' worthy to be followed.
But in reality the taking of nice distinctions on this subject could have been of no possible moment to the defendants in this case, for, if their theory of the fatal meeting was to be credited by
Fourth. — And, finally, it is insisted that the charge is fatally defective, . in that it omits the usual instruction in a case of purely circumstantial evidence, which it is contended this is, as to all the defendants except “ Big John.”
The .instruction on the law of conspiracy and reasonable doubt, or so much of it, rather, as need be here noticed, is in these words: “In this ease, if the evidence should satisfy your minds, to the exclusion of all reasonable doubt, that the defendants entered into a conspiracy to go and hunt up, or waylay Henly Sutton, the deceased, and to kill him, then the act of any one of them done in furtherance of the common design would be the act of all, and all would be equally guilty of the act, and liable to. the same punishment therefor.”
This chai’ge is not assailed as unsound or inaccurate, so far as it goes, but the earnest contention is that the Court should have gone further, and told the jury, in substance, that to convict the defendants in this case the proof must be so clear and convincing as to exclude every other reasonable hypothesis than that of their guilt, and
It is well-settled law that such additional instruction must be given where the guilt of the accused is sought to be established upon circumstantial evidence only, and that, too, notwithstanding the doctrine of reasonable doubt be already embraced in the charge. Smith v. The State, 2 Leg. R., 56; Turner v. The State, 4 Lea, 207.
Though it is a well-established and just practice, we do not think the rule applicable to the case before us, because the guilt of the defendants does not depend alone on circumstantial evidence. Such is not the dependence of the State as to any one of them. That it is such a case as to “Big John” is, of course, not insisted, for he confesses that he fired six or’ seven shots. That it is not such a case as to Anderson is equally clear. Mills says that he saw Anderson fire one time. To say that this statement of Mills is denied and shown to be untrue does not make it any the less direct testimony of the fact. The statement is not a mere circumstance tending to show the fact, but it is direct testimony of the fact itself. "Whether it was true or not is quite another question, and that was for the jury to determine, under the rules with respect to conflicting evidence and the doctrine of reasonable doubt.
The case against the other three defendants, though partly circumstantial, is likewise not dependent entirely on circumstantial as contradistin-
In one sense, of course, the facts we have just mentioned are only circumstances indicating the main fact — a purpose and readiness to encourage •or render needed assistance in the taking of Sutton’s life; still they are not merely circumstantial evidence in the contemplation of the cases cited. Otherwise it might he said that the fact that ■“Big John” discharged his gun in the direction of Sutton was hut a circumstance indicating his purpose to kill. That would be unreasonable in the extreme.
In behalf of the defendant, Clint, it is well said that the fact that he had no gun, and was not at the road when Sutton was killed, should weigh something in his favor. Nevertheless, we think that fact becomes unimportant in view of the other facts that he, a few ' days before, inquired of Clinton Leyer if it was not the habit of Sutton to go home Saturday evening; that he voluntarily joined the other defendants at his mother’s house the night before; that he made the suggestion that they should go out upon “ Troublesome Badges” Saturday morning, and that he stopped on the side of the hill, from which he could command a view of the road on which Sutton was expected to travel, and from which he could give all necessaiy and desired signals to the other defendants at or behind the log. Whether the line of signals extended further up the hill, to the place where^ their Cousin Anderson stood, it is not necessary for us to surmise.
If it be true, as we believe it is, that the other
We have given this case, in all of its aspects, a most solicitous and painstaking consideration, and in doing so we hesitate not to say we would have been glad to find these young men innocent of the charge laid at their door. The deceased made unjust and violent threats against two of them, but that can afford neither moral nor legal justification for taking his life.
Let the judgment be affirmed.
Judges Luxton, Eolkes, and Snodgrass concurring; Turney, C. J., dissenting, because he does not believe the verdict sustained' by the evidence.