Pharr v. State

1. Self-Defence — Charge of the Court.—Instructions on the right of self-defence should not limit the justification to the imminency of real danger, ignoring the appearance of imminent danger, in view of which the defendant may have acted. 2. Murder in the First Degree. —It is not all homicide, but all murder, committed in the perpetration or attempt at the perpetration of robbery, rape, arson, or burglary which is made murder in the first degree by our Penal Code. Malice, therefore, the characteristic element of all murder, cannot be dispensed with or ignored in a proper charge to a jury trying an indictment for murder so committed. But implied as well as .express malice constitutes a murder so committed murder in the first degree. 3. -Charge of the Court.—No intimation of the opinion of the court upon the truth or falsity of any part of the evidence should be communicated to the jury, either by the charge or in any other manner. 4. Allegata et Probata. — The motive upon which a homicide was committed is more properly a subject of proof than of pleading.

Appeal from the District Court of Johnson. Tried below before the Hon. J. Abbott. By the indictment, the appellant, Henry M. Pharr, was charged with the murder of an unknown white man, on July 14,1877, by shooting him with a gun. The case came to trial at the June term, 1879, when the jury found the defendant guilty of murder .in the first degree, and judgment of death was rendered thereon in accordance with the law before the Revised Codes took effect. The deceased was described in the indictment as an unknown white man, about twenty-five years of age, and none of the State’s witnesses knew his name at the time of the trial. But Stephen Johnson, a witness for the defence, was able to give some account of him. The witness and others went from Blanco County to Kansas, in the spring of 1877, with a drove of cattle. In the latter part of June of the same year, he, with the defendant, a man named Lamb, and the deceased, whose name was Harrell, left Kansas together for Texas. They travelled in company until they got ten or fifteen miles below Fort Worth and ten or twelve north of Alvarado in Johnson County, when they separated. This was on or about July 13, 1877. The defendant and Harrell came on together towards Alvarado. The party had been earning $30 each per month as drovers, but none of them had much money when they left Kansas. The defendant had more than any of the rest, and in the Indian Territory had let the witness have $20, and after-wards a small. sum -at Fort Worth. Their necessary expenses from Kansas were about $10 each. The deceased had a small pony worth $10 or $15, a six-shooter which he carried in his saddle-bag, and but very little money, at Fort Worth. The party played cards on their route from Kansas. The defendant, according to the witness, bore the character of a peaceable and quiet young man. R. D. Richardson, a witness for the State, saw the defendant and the deceased the evening before the latter was killed. They came to witness’s house, one and a half miles north-west from Alvarado. Defendant was riding a mule and had a gun; the deceased was riding a small pony and had no -weapon in sight. They bought some forage from witness, and he saw them again the next morning as they passed his house going towards Alvarado. They seemed perfectly friendly to each other. On the 14th of July, 1877, being the day he last saw them together, witness saw the dead body of the deceased in Alvarado, and recognized it as that of the man who was with the defendant. By other witnesses for the State it was proved that the defendant and the deceased were in Alvarado the day of the homicide, inquired there for the road to Hillsboro, and left together in that direction. About a mile and a half from Alvarado they were met by a witness, who was bringing melons to the village for sale. They bought two melons, for which the deceased paid, and witness saw that he had three currency bills folded together. They asked him about the Hillsboro road. They were next seen by another witness, who was travelling behind them in a wagon, and as near to them as two hundred yards. After they passed over a hill, which intercepted the witness’s view of them, he heard the report of a gun or pistol, and as he drove on he saw some one run out from the bushes into the road, pick something up, and run back into the bushes. The witness thought nothing about it as he drove on, but, having gone on a mile or so and got a load of wood, he returned along the same road, and examined the spot and bushes to see what had been done there. Seeing blood in the road and on the bushes, he followed the trail, and came to the dead body of the deceased, who had on no hat, and whose shirt had been torn off. One of his boots was gone, and one pocket turned inside out. The leg upon which there was no boot seemed to have been hurt by a rope. Nothing in this witness’s testimony identified the defendant as the person who fired the shot, or who ran out of the bushes into the road and back. Before he saw the body of the deceased it had been found by another witness, Mr. Walker, who lived close by. When found by him, there was a rope around the leg of the deceased, and his body was considerably bruised by dragging. He had been shot just behind the left ear, and the bullet came out on the right cheek, or, according to another witness, in the right temple. The body lay seventy-three yards from the road, and had been dragged from the road along a cow-path. Thomas Coulter, a deputy-sheriff, testifying for the State, said that he had seen the deceased and the defendant, with their pony and mule, the day before the homicide; and hearing of that event, he and the others took the trail, and pursued it to Hillsboro and eight miles beyond, where they came up with the defendant. He was in company with another man, and was eating his supper by the side of the road. The witness arrested him, and took him back to Hillsboro. Some of the party told the defendant the cause of his arrest, and, after leaving Hillsboro the next morning, “ defendant,” says the witness, “admitted to me that he had killed deceased, but said he had killed him in self-defence, though defendant had previously denied that he had done the killing. * * * He stated that he and deceased had travelled together from Kansas, and had been playing cards, and that he (defendant) had won the pony of deceased at cards; and that on the morning of the killing they were riding along, and got into a conversation about the pony defendant had won, when the deceased told the defendant that he had to give him back his horse. Defend-O ant replied that he would not do it, when deceased said, ‘Well, I will kill you then,’ and immediately reached his hand into his saddle-bags to get his pistol; and, believing that deceased .was going to kill him, he stopped his mule, which threw deceased a little ahead of him, when he raised his gun and shot deceased. * * * That after he had killed the deceased he started back to Alvarado to give himself up to the officers, and got about half a mile from the place of the killing, when he met a man in the road, whom he asked how far it was to Alvarado. Defendant stated that after meeting this man he went on in the direction of Alvarado, but, being alone and a stranger, he became frightened, and concluded to go on home.” The defendant, when arrested, had the pony and saddle-bags which the deceased had had, a six-shooter, some clothing in the saddle-bags, three five-dollar bills, and three twenty-five-cent bills. L. E. Easley, for the defence, stated that on the morning of the killing he was going from Alvarado to mill, and about a mile and a half south of Alvarado met the defendant, who was coming in the direction of Alvarado. Defendant was riding a pony in a gallop, but stopped and asked witness how far it was back to Alvarado. Witness told him the distance, and defendant galloped on towards Alvarado. Where they met was between a quarter and a half a mile towards Alvarado from the place where the deceased was killed. Quite a number of witnesses appeared for the defendant, who had known him well in Blanco County for several years • previous to the homicide. They concurred ill giving him an excellent character as a peaceable and quiet boy. The opinion discloses all other facts of any note.