102 Tenn. 33 | Tenn. | 1899
A. T. and Morgan Foster are father and son. The father is a man of about fifty - nine years of age; the son is a boy of sixteen. They were indicted for the killing of R. W. Woodard. The father was acquitted. The son was convicted of murder in the second degree and sentenced to ten years in the State penitentiary, and has appealed.
The deceased, Woodard, was a vigorous man about thirty-five years old, and estimated to weigh from 150 to 180 pounds. Both Woodard and the elder Foster were wagoners and log haulers. There had not been good feeling between them for some time. It appears that they, while driving their wagons and teams in opposite directions, met in the public road, when they, instead of passing, blocked each other in the way. Some words ensued. Both parties left their wagons and went back towards Marbuts, a post-office on the road near by. In passing down the road the deceased came up to a lot of boys, white and black, who were having some music and dancing in the road. It was Christmas times, December 27, 1897. Among these boys, and taking part in the frolic, was Morgan Foster. Deceased, on approaching the boys, pointed to the elder Foster, who was coming on behind him, and said, ‘ ‘ Boys,
The son, it appears, caught the purport of what the deceased had said but not the language. The son then started towards his father’s wagon to help get it by the deceased when his father intercepted him and told him to let the team alone. In the meantime the deceased was returning along the road and met the elder Foster still on his way to Mar-but’s. Pie accosted Foster and said: “Did you call me a son of a b — h at the wagon ? ” to which the elder Foster replied, “I did.”
Woodard then assaulted the father and had him to his knees and was choking or attempting to choke him, and was striking him over the head, whether with a knife or with his fists the son says he could not tell. The son ran up and demanded of Woodard that he desist and told him twice to hold up. Woodard persisted in the assault. It is shown that he was physically able to handle both of the Fosters. The elder Foster was not robust and was besides a cripple. The son, after calling to Woodard once, and according to some of the witnesses twice, drew a pistol and fired at deceased and shot him, the ball entering the eye and killing him. The boy then went up the road a short distance to his
The deceased had the character of being somewhat quarrelsome and had had several fights. Upon this point, however, there is a conflict of testimony. The father testified that he was entirely powerless in the struggle with the deceased and believed he was in clanger of losing his life; that he did not strike deceased, because ■ the fierce assault gave him no opportunity; that he did not see his son or know that he was taking any part in the struggle until he heard the pistol shot and felt the deceased relax his • hold upon him. The boy testified that he honestly believed his father was in danger. of being-killed or of receiving great bodily harm and shot in his defense, believing it to be necessary to save his father’s life. The elder Foster was, upon these facts, acquitted of any offense. It is evident that if the son was guilty of any offense it was not of murder in the second degree, but of a much less offense, and the cause must be reversed and remanded for a new trial.
It appears that some time before this difficulty there had been another difficulty between the deceased and the elder Foster at Marbut’s store. Deceased was at the store when Foster came up. The
Previous acts of hostility and demonstrations, if any, made by the deceased toward the father, and coming to the knowledge of the son, and his conduct and demeanor toward him, were important as showing whether the boy had reasonable grounds to believe the deceased was making a deadly assault upon his father, and would kill him or do him great bodily harm unless by some summary means he was prevented. It was error to reject the testimony as to who was the aggressor in this previous difficulty, and what demonstrations were made on that occasion by deceased, especially if they were seen or came to defendant’s knowledge.
We do not' mean to in any way justify or excuse the defendant for going armed contrary to law. It was an offense to have a pistol upon this occasion, as he did, and for that he might have been punished. But the offense of going armed is one entirely different from a crime committed by using the pistol in an assault upon another, and it is only for
The j udgment is reversed, and cause remanded for néw trial.