50 Tenn. 420 | Tenn. | 1872
delivered the opinion of the Court.
Plaintiff in error and three others, (all colored,) were indicted in the Circuit Court of Coffee county, for an assault with intent to commit murder in the first degree, upon Leauder Carden, (prosecutor,) and William Keele. Defendant alone was tried, the other three having fled the country. The defendant was found guilty, and sentenced to three years’ imprisonment in the Penitentiary; from which judgment he has appealed. We find no error in the record, either in the admission or rejection of evidence, or in the charge of the judge, on which the defendant is entitled to a new trial. The only question which we deem it necessary to examine, is, whether the evidence was sufficient to support the finding of the jury.
She asked them what they wanted; they said, “nothing —no harm;” they then asked if Henry Neele was there. She answered, “no, and she did not know where he was.” They then asked, “where is Tobe and Bill?” They then said, “Come, let us go.” Just after that, she saw some person or persons coming up the lane from towards Mrs. Neele’s, and soon saw prosecutor and Mr. Neele walking up near the gate, and heard prosecutor say, “Boys, what’s up?” or, “what’s up now?” and they replied, “Nothing.” She saw that the prosecutor had a gun, and' about this time she went into her house, and neither heard nor saw any thing more.
The prosecutor proves, that after the negroes passed Mrs. Neele’s, he heard the dogs barking, and the talking at Julia Bailey’s. The prosecutor took his gun, and in company with Mr. Neele, went up to Julia Bailey’s, remarking that he would go and see what was up. When they reached the gate near the house of Julia Bailey, he saw four or five men standing in the yard; he is not certain whether there was more than four; thinks he saw three guns in their hands; he could not tell who any of them were; could not say that defendant was there. When they walked up to the gate, prosecutor asked: “Boys, what is up now?” Some one remarked, or re
Another witness proves that after Horace Armstrong was killed, defendant told him he was up there, but that he had nothing to do with the shooting.
Defendant said to the doctor, on his way to see Alfred Davis, talking about Henry Neele and the Cardens, and other white men, that he would have revenge if he had to bum up Panhandle Creek.
Thomas Davenport proves, that on the night after the affray at Alfred Davis’, the several, negroes indicted were at his grocery, wanting whisky. He would not sell it without the money. They were talking about the Car-dens, and other white men, and one negro named Henry Neele, having been engaged in the affray; and were talking about going up to Crossland Branch, and threatened they would kill the negro and -make mince meat of the others. He could not state that defendant made any threats; is not certain that he did. They were all three together, and talking, but can not be certain that defendant, or which ones, used threatening words.
It was in proof that all the parties charged in the
The proof, as it is presented in the record, makes out a most wanton and unprovoked assault and battery by the prosecutor and his company, upon David Love and Alfred Davis. It was well calculated to arouse the worst passions of the parties abused, and their colored friends. It was especially calculated to excite them against one of tbeir own color, who seems to have taken an active part in the assault and battery. If the injury had been resented immediately, the consequences, whatever they might have been, could hardly have amounted to murder in the first degree. It was fairly left to the jury, whether the shooting which afterwards occurred at Julia Bailey’s, took place under the passion provoked by the assault and battery at Davis’; or whether it was made with deliberation and premeditation, after the passions had time to cool. The jury found that the assault, at Julia Bailey’s, was made after sufficient cooling time to deprive the defendant of the benefit of the defense of having acted under passion produced by recent provocation.
We think the evidence justifies their conclusion as to this point in the case. The proof leaves no room to doubt as to the presence of defendant when the shooting took place. He distinctly admitted to two witnesses that he was present; and it is proved by another that he was in company with the other parties indicted when they were probably on their way to the place where the shooting occurred.
But the questions of difficulty are: First, with what intent did defendant go to the place; and second, if he
The charge is, that defendant assaulted the prosecutor' and ¥m, Keele with intent to commit murder in the first degree.
Defendant said to the doctor that, “he would have revenge, if he had to burn up Panhandle Creek;” and to Davenport, some of the four indicted — all talking together — said, “they would kill the negro Henry Keele, and make mince meat of the others.” Although it is not shown that defendant made this' threat, yet it was made in his presence, and he made no dissent. It is in proof that the parties indicted passed by the house where the negro Henry Keele was living. "When they reached the house of Julia Bailey, they first ' asked for Henry Keele, the negro, and not finding him, they then asked where Tobe and Bill Avere, (meaning, as we infer, the prosecutor and Win. Keele.) This proof makes it certain that the four negroes indicted started out armed, for the purpose of having revenge. Their object was, first, to take revenge upon Henry Keele, and that was clearly their purpose in going to Julia Bailey’s, where he lived. It is clear, also, that they intended to have revenge on Henry Keele, by taking his life. The proof shows, also, that they had formed the purpose to take revenge on the prosecutor and Wm. Keele, but it is not apparent what was the measure of revenge contemplated as to them. They threatened “to kill Henry Keele,” the negro, but “to make mince meat” of the white men. This may have
But, in the second place, when the prosecutor and Wm. Keele were fired at from Julia Bailey’s yard, was it done with the deliberation and premeditation which were necessary to constitute murder in the first degree; and did defendant concur in this intent? It is to be observed that the four negroes indicted passed by the house where the. prosecutor was, without stopping or making any hostile demonstration, nor had they indicated any criminal purpose after reaching Julia Bailey’s house.
The prosecutor and Wm. Keele were induced to follow them by hearing the barking of dogs and the talking of the negroes. The prosecutor arms himself, and takes Wm. Keele with him, and follows on to see what is up now. Julia Bailey tells what occurred before the prosecutor arrived. The four negroes asked for Henry Keele. Upon finding that he was not there, they asked where Tobe and Bill were. She saw the prosecutor and Wm. Keele approach the gate, and heard the prosecutor ask, “Boys, what’s up now?” and the reply, “Nothing.” This is all she heard or saw. She . did not hear the remark, “G — d damn it, we will show you,” which the prosecutor says was made a part of the reply to his question, “Boys, what’s up now?” She saw nothing of the raising of the gun by one of the four negroes in the yard, which the prosecutor said occurred “immediately
But assuming that the facts as to the origin of the shooting are entirely reliable, we are not satisfied that it took place with that deliberation and premeditation necessary to make out the charge in the indictment. The fact that the prosecutor and ¥m, Neele followed the negroes to Julia Bailey’s; that they -were two of the men that just before had assaulted and beaten and stabbed one of their color, and that they approached them armed, may very well have produced the impression that their purpose was to make another attack. We can not see that there was any time for deliberation, or that there was any premeditation; and especially we see no ground to assume that there was any con
Let the judgment be reversed, and a new trial awarded.