State v. WarnerState v. Warner
- Reporters:
- ,
- Before:
- Rothrook
Many witnesses were examined upon the question of the nature and disposition of the deceased. There is a very decided preponderance of the evidence to the *263effect that he was a man of violent temper and overbearing disposition, and in the habit of making threats of violence to others. A few days before he was killed, and when the dispute was pending, he put his shotgun in his wagon, and drove to the disputed line, where the defendant had taken up a post set by the deceased; and there is evidence that he at one time, before this contention about the boundary line, carried a revolver. In short, he was contentious, quarrelsome, abusive, and profane. The defendant knew that Inman had a gun in his wagon when he drove over to the disputed line, and, in his controversies with him, he had learned by observation and by information from others what the true character of Inman was. After the death of Inman, the defendant went to his own home. He made no attempt to escape, but surrendered himself, and submitted to an arrest without a warrant. He laid his pocket knife on the shelf, and said, “I never will carry a knife again.” There were no witnesses near to the parties at the time of the collision between them, in front of the horses. Two or three saw the affray at a distance, but they could not describe it more particularly than to say it was a “scrap” or a fight. Both of the men were in a standing position until Inman went down, after he was stabbed. The defendant was a witness in his own behalf. He gave a history of the contention and trouble between him and Inman. Much of this had reference to stock passing over the unfenced line. It appears that Inman had moved on his farm the year before, and the defendant had raised crops, and cut hay, and stacked it on the land, having farmed it as a tenant. Inman had the defendant arrested for trespassing on the land by removing the hay, and refused to allow defendant’s stock to pasture in the corn stalks. The defendant was tried before a j ustice of the peace, and was acquitted. The defendant *264testified that after that trial was over, and on the same day, he was told that Inman threatened that, if he could not keep defendant off his land by law, he could keep him off with a shot gun, and he was then warned that Inman would kill him. The defendant, in his testimony, related the facts immediately attending the killing of Inman as follows: “I was driving down from the north end when I saw Inman coming up the road towards me, but I had no idea he intended any trouble. The first I knew about any trouble was that he stepped up, and grabbed my horses by the bits, and he said, ‘Damn you, are you going to sow there?’ And I told him to get away, and let my horses alone. He did not let go, and I got down off the seeder, and went around to where he was, to the head of the horses. He let go of the horses, and’ struck at me two or three times, and I pulled out my knife, and stuck it into him. ’ The reason I stuck it into him was because the threats that he had made against me came into my mind, and I did not know but what he had something in his pocket, a weapon of some kind, and I supposed I would be killed, or I would be hurt seriously, if I did not defend myself; and, in sticking him with the knife, I did not intend to kill him, but I did it to protect myself, or to keep him from killing me, or from doing me great bodily harm. I aimed to strike him in the leg somewhere, and struck low on purpose. My intention was to keep him from making assaults on me. * * *” Further on in his testimony, he said “that, while I was getting out the knife, he was following me up, and was pretty close to me. I had the knife in my right hand, and was warding off his blows with my left. I do not think I struck at him before I drew out my knife, for he was firing his blows at me, and I was warding them off. * * * If I had run, I might have got away from him,”
*265We have stated the leading facts, for the reason that the only doubt we have in the case is whether the evidence warranted the j ury in finding the defendant guilty of manslaughter. After a careful examination of the whole of the evidence, our conclusion is that it was a fair question for the jury to determine, and that ‘the district court did not err in overruling the motion for a new trial, on this ground. The fact is that Inman had no knife, revolver, or other weapon upon his person at the time.
III. It is said that the indictment is fatally defective. This position is not well taken. It is not materially different from indictments which have been held good for murder in the second degree, by this court. This is so manifest that we will not set out the indictment.
IY. Other objections are urged, which demand no special consideration. The whole record shows that the defendant was fairly tried. ‘The rulings of the court all through the trial were liberal towards the defense. And the j ury were evidently in sympathy with the defendant. Each one of the twelve jurymen *266signed a request that, in fixing the sentence, the court should be merciful to the defendant. The judgment was that the imprisonment in the penitentiary should be for two years and three months. We discover no ground for interfering with the judgment, and it is AEEIRMED,