105 Tenn. 305 | Tenn. | 1900
The plaintiffs in error were convicted of murder in the second degree of Henry Fowler, and their punishment was fixed at twenty years confinement in the State penitentiary. Having failed in their motion for a new trial, they have appealed to this Court.
They are brothers; they were also cousins of the deceased, reared on an adjoining farm to that-of his mother.' But, while relatives and close neighbors, the evidence shows their respective tam-iles had been more or less estranged for several years. Some three weeks before the homicide Tom Smith told several parties that - in passing along-a road which separated his father’s farm from that of the Fowler’s, he had discovered the deceased in a compromising position with a young-girl, the daughter of one Began. This story soon became public property, and was not long in reaching the ears of Began and the deceased. On hearing the report the. latter was much disturbed,, and sought its author for an interview. What-took place at this interview rests alone on the-testimony of Tom Smith, the surviving party to-it. Tie stated, while on the witness stand, that in answer to a request on the part of the deceased that he say publicly either that the report in
This condition however did not long continue. Both parties were evidently dissatisfied, and each, indulged in a good deal of angry talk with regard to the original story, and this effort at settlement. At any rate another attempt at an adjustment was deemed necessary. AVho took the initiative in this is not clear: it is probable, though,, it was the deceased. This resulted in an agreement for a meeting of these two principals and a few of their respective friends at a place near the point from which Tom Smith claimed to have seen the deceased and the young girl, and at an early hour in the morning' on the twelfth of June, 1899.
The plaintiff in error, Tom Smith, communicated to his brothers and others of his friends-the afternoon before, the time, place, and purpose of this meeting. One of these friends said to> him such a meeting was more likely to produce
The witnesses who testify as to these conversations with the deceased ■were all relatives or close friends of the plaintiff in error, Tom Smith; at any rate whatever the deceased was doing and saying was at once communicated to Tom.
On Monday morning, June 12, at an early hour, the deceased, with his brother, Bud Fowler, Began, and a few other persons, repaired to the place which they understood to he. the one appointed for the meeting: waiting for a short time, and Tom Smith and his friends failing to appear, it was suggested that they might, under a
The plaintiffs in error agree that he did go to the point where they, with two or three of their friends, wrere, and after saluting them, that he said his party wrere awaiting them below, and he-asked that they join them there.
There is no pretense that there was any bravado-in either manner or speech on the part of the deceased in extending this invitation. Immediately on receiving it the plaintiff in error, Bob Smith,, and one Summers, the brother-in-law of the two-Smiths, started down the road in the direction indicated, in company with the deceased, and joined his friends. Tom Smith said to them as they ■left him he would soon follow. On the way down it is not claimed by Bob Smith and Summers that the deceased evidenced bad blood. On
What then occurred may be given in a summary of the testimony of the witnesses for the State, and of the plaintiffs in error, the statements of the latter being supported by a sister, who says she came on the ground in time to see the whole difficulty.
The witnesses for the State say as Bud Bowler, at a distance of thirty steps from Tom Smith, was in the act of throwing the piece of wood, as has been before stated, the latter prilling his pistol fired at him, but missed his aim; that having thrown. ■ the wood, notwithstanding the fire, Bud continued to advance, and ás he did so he stooped and broke a sassafras root partly decayed, and for its size, light in weight, and hurled this at Tom Smith. One of these pieces of wood hit
On the other hand the plaintiffs in error both testify (and in this they are corroborated by their sister, Mrs. Glascow) that Bud Bowler having thrown the two pieces of wood, as has bejen stated, rushed on Tom and struck him a heavy blow on the wrist with a part of a brick, ■ about one-half of a whole, and then dropped his’ hand to his pocket as if to draw a pistol, at which instant, Tom, believeing himself in imminent danger, fired the fatal shot.
The jury, however, did not credit this testimony, but evidently accepted that of the State’s witnesses, and in doing so we» think were well
warranted. In the first place, we are satisfied Bud Bowler had no brick. He was without his coat at the time of the difficulty, and it would have been impossible for him to have effectually concealed about his person an article as large as
this is claimed to have been; nor is there any pretense that there were bricks lying about ' on .the ground at this place of meeting. In the second place, it is not even suggested that Bud
We are satisfied there was no justification for this shooting; that there was nothing in the attitude or conduct of Bud Eowler to raise in the mind of Tom Smith a reasonable apprehension of death or great bodily harm.
This conviction, however, is not for the killing of Bud,, but of his brother, Henry Eowler. We will now turn to the facts attending this latter homicide.
The witnesses for the State agree that Henry Eowler was in the party which advanced with Bud Eowler, and that as Tom Smith was shooting at Bud, Henry passed in front of plaintiff in error, Bob Smith, on toward Tom, and as he did so Bob Smith shot him in the back” and Tom having disabled Bud, immediately turned on Henry Eowler and fired into him four times, two of the shots being given after' the latter had fallen on the ground. These witnesses also state Henry was unarmed, or, if armed, that they saw no evidence of it.
On the other hand, the plaintiffs in error deny that Bob Smith shot at all, and agree in their testimony that Tom did the shooting, all of his
The 'issue raised as to whether the- deceased had a pistol was settled against the claim of the plaintiffs in error; but for the disposition of this cause it may be conceded that he did, and that he fired at Tom Smith, as is claimed by the plaintiffs in error and their sister.
That the weight of the testimony is that Bob Smith shot ITenry Fowler in the back, under the circumstances insisted on by the State, we are entirely satisfied. It is uncontradicted that Bob went to this meeting with a pistol in his pocket, and a butcher knife . concealed about his person, both of which weapons at a subsequent stage of this affray he used upon the body of Began.
We also think it clear that Tom Smith had in the beginning an unfriendly feeling for ITenry Fowler, and the circulation of the story in ques-
Under these circumstances, Henry Eowler had a right to intervene, and even slay, to save, if possible, the life of Bud Eowler, his brother. This right of intervention is well settled. “Where a felony' is attempted upon any' one, not only the party' assaulted may repel force by force, . . .
Under this well-settled principle, if Henry Bowler, thus intervening, had ' killed Tom Smith, it would have been a case of excusable homicide. The reverse of this is equally true. The rule
In addition, we repeat here what was announced as a rule of law in the case of Irvine v. State, 104 Tenn. Where the defendant by his conduct challenges or provokes the fight, and has gone to it armed with the purpose to use his arms upon his adversary, if the emergency occurs,' he cannot, after having slain him, say lie acted in self-defense. A man may not, under such conditions, provoke a quarrel, and then, taking advantage of it, excuse homicide.
In such a case, in order for the right of self-defense to arise, the party whose wrongful aggression has brought on the difficulty must not only desist from it but he must give his ad-versay notice that he has desisted; until this has been done the original aggressor cannot kill. Irvine v. State, supra. On this point there1 was nothing in the charge of the trial Judge of which plaintiffs in error can properly complain. Hor was there error in the failure of the Court below to ■say to the jury that if Bob Smith went to the place of meeting with the purpose- to fight only in the defense of his brother Tom, then he would not be guilty of any offense. Eor Bob cannot excuse.1 himself as a guilty participant in the affray,
Many other errors were assigned at the bar upon the brief of the counsel of the plaintiffs,, all of which were disposed of orally.
We are satisfied with the conduct of the trial,, and that upon the law as given to the jury, and the evidence adduced, the verdict of guilty of murder in the second degree was one of which these plaintiffs in error have no right to complain. ;