74 Tenn. 213 | Tenn. | 1880
delivered the opinion of the court.
The indictment in this case charged that the de-. fendant, Harmon C. Foster, with a pistol, charged with powder and leaden balls, an assault did make upon the body of one Cinthia Ann Hood, and upon, her, by shooting with the pistol charged as aforesaid, inflicted a mortal wound, of which wound she died. “And so the grand jurors, upon their oaths aforesaid,. present and say that the said Harmon C. Foster, by the means aforesaid, in manner and form as aforesaid, the said Cinthia Ann Hood, feloniously, wilfully, delib-. erately, premeditatedly, and of his malice aforethought, did kill and murder, and commit murder in the first degree,” contrary, etc.
It is objected to the indictment, that it should., have charged that the defendant feloniously, etc., made. the assault, as well as feloniously, etc., did murder.
The .jury found the defendant guilty of murder in the second degree, and it is argued that the facts do not sustain the verdict. The defendant came to the house of the prosecutor about sunup, before any of the family had risen, and called out that he wanted in. Prosecutor arose, opened the door, and found the defendant standing outside with a pistol in his hand, cocked. The pistol was ‘ a small Wesson revolver, with the chambers all loaded with ball. He said he had taken a woman away from another man that night on the mountain, and given her to a friend of his; that he had broken his pistol, and had come to get a string to tie it down. Prosecutor took the pistol out of his hand, uncocked it, and, going into the house, laid it on the table, and called his wife to get up and make the defendant a string. Defendant walked to the table, took the pistol, and seated himself on a chair near the door. The prosecutor’s wife brought a cob spool of thread, and, standing about four feet from defendant with her side to him, commenced making the string for him by winding off the
The law presumes malice from the killing with a deadly weapon, but the jury may look to all the facts and circumstances developed by the evidence, cither of State or the defendant, to ascertain whether the malice is rebutted, a reasonable doubt enuring to the benefit of the defendant: Bryant v. State, 7 Baxt., 67. The defense relied upon was that the shooting was accidental. Three witnesses, present at the killing, were examined by the Slate, all of whom say that defendant set up no such defense at the time. The de
The prosecutor proves- that, a month or so before the killing, defendant Wanted to borrow from deceased a dress and pair of shoes for his (defendant’s) wife to wear to Cookville to apply for a divorce from him. The deceased did not wish to have anything to do with the business, and refused the request. The prosecutor says defendant got miffed about her refusal. Another witness for the State proves that defendant made a crop with him the year of the killing, and, ■about three weeks before that occurrence, witness heard defendant talk about the deceased. He said she had refused to lend his wife her clothes to go to town to ¡see about getting a divorce from him, and that if she
The verdict was clearly warranted by the facts,, and the judgment must be affirmed.