John Breedlove v. The State, 26 Tex. Ct. App. 445

Willson, Judge. On the evening of July 26, 1888, about good dark, at the house of Caleb Cooper, in Smith county, Isham Amos was shot and killed by some person. At the time deceased was shot he was sitting on the gallery of the house in company with one Willis King. He was shot with buck shot and lived but a few moments after being shot. It is very clear from the evidence that whoever did the shooting lay in wait for that purpose, and perpetrated the deed with a cool, sedate mind and a formed design to kill.

The physical indications at the place of the killing showed convincingly that the person who fired the fatal shot, at the time of firing, stood at the corner ■of Cooper’s smoke house, at a distance from deceased of twenty-five or thirty steps, and at the place where he stood the weeds had been tramped down, and some appeared to have been cut with a knife. Unquestionably the homicide was a deliberate assassination, and the evidence rebuts and absolutely repels the theory of manslaughter contended for by appellant’s counsel.

If Isham Amos was killed through mistake, the slayer believing him to be Willis King, whom he intended to kill, the homicide is of no higher grade than murder in the second degree, and if the killing of King, had he been killed, would have been manslaughter only, then the killing of Amos, believing him to be King, would be manslaughter only.

But, if King had been killed instead of Amos, and killed by the defendant, shortly after the defendant had been informed and convinced that said King had had carnal intercourse with his, the defendant’s, wife, such killing, uuder the facts of this case, would have been murder in the first degree. It could not have been manslaughter, because the evidence shows that in committing the homicide his mind was cool, sedate, and deliberate. He prepared himself with a weapon, traveled a half mile or more, secreted himself in a convenient place, and waylaid his intended victim.

He was not acting under the influence of sudden passion. We are of the opinion, therefore, that the facts of the case did not demand or warrant a charge upon the law ■of manslaughter. It is insisted by counsel for appellant that the evidence is insufficient to support the conviction. We think otherwise. Hot-withstanding the evidence is circumstantial, it is, to our minds, quite conclusive of the defendant’s guilt, and fills the requirements of the law.

It is objected by appellant’s counsel that the best evidence of the defendant’s guilt was not produced nor its absence accounted for by the State—that is, the testimony of Willis King .and of Frances Graybill. This objection is not maintainable. It does not appear that Willis King’s testimony would have shed any light upon the transaction. It is not probable that he saw or knew who did the shooting, or that he knew any fact which would have aided the jury in arriving at the truth.

With respect to Frances Graybill, the wife of Mansur Graybill, the evidence shows that she was absent from her house, where defendant’s gun was, long enough for him to have taken the gun away from the house without her knowing it, and it does not appear from the evidence that she knew any fact, or probably knew any fact, which would be better evidence than that which was adduced upon the trial. Opinion delivered November 21, 1888. We perceive no error in the conviction, and the judgment is affirmed. Affirmed.