THE HEMPSTEAD HOMICIDE

Defendant's Statement of the Case — What will be the Judgement?

[From Briefs for the Appellants, by Bassett, Muse & Muse, of Counsel.]

NATURE AND RESULT OF THE PROCEEDING BELOW.

The appellants McDade and Springfield were charged with the murder of Stephen Allchin, in Waller county, on the 29th of May last. On the preliminary hearing, had before a justice of the peace of that county, they were committed without bail to the custody of the sheriff of Washington county. They sued out a writ of habeas corpus before Hon. J.B. McFarland, district judge, who made the writ returnable before the district court of Burleson county, then in session at Caldwell. On the hearing the applicants were denied bail and they appeal.

The papers and proceedings were certified by the clerk of the district court of Burleson county to the clerks of Waller county, by whom the transcript is made out and certified to this court, in accordance with the rule indicated in ex parte Barrier, 17 C.A. 585,m 587.

The only error assigned to us is to the effect that the court below erred in denying the relators the privilege of bail and in remanding them into the custody of the respondent without bail, because upon the whole case the proof was not evident beyond a reasonable doubt that the relators had committed a capital offense. [R. p. 125]

STATEMENT

By consent the habeas corpus was tried on the record of the evidence taken in the examining court, supplemented by the testimony of a few additional witnesses, which may be summarized as follows:

On Saturday, the 29th of May, 1888, at about 11 o'clock a.m., in the town of Hempstead, Waller county, Stephen Allchin was shot and killed by the relators McDade and Springfield. The homicide occurred on Main street, one of the principal thoroughfares of the town, and was witnessed by a large number of persons, over fifty of whom were examined, and their testimony will be found in the record. Allchin was at the time sitting on his horse, in front of Zeismer's (sic - Zeisner's) saloon, which was one of a row of brick buildings facing east on Main street. The street is 100 feet wide, including a plank sidewalk or raised platform of about eight or nine feet in width. The horse was facing the buildings, his head being close to the sidewalk. Allchin was sitting on the horse with his right leg thrown over the animal's neck, or the pummel of the saddle. He had a winchester rifle resting on his lap between his body and the pummel. The muzzle of the gun was pointing in a southerly direction. The relators come (sic) from a southerly direction and fired on him from the sidewalk in front of Haveman's building.

Zeismer's saloon, in front of which the homicide occurred, is the second in the series of buildings known as the Haveman block. Haveman's is on the southeast corner; next to it, on the north, is Zeismer's and next Pointer's, each being about 25 feet wide, as nearly as can be gathered from the evidence.

The Haveman block is 250 feet long and 125 feet deep. It is bounded on the north by Austin street and on the south by Bremond street, each of which is 80 feet wide; on the east it is bounded by Main street, which is 100 feet wide, and on the west by a 90 foot alley, [R., p. 53] Allchin was within 40 or 50 feet of the south end of the block. It is in evidence that the relators had come from the rear of Wheeler's saloon, which is in the next block on the north, two or three minutes before the shooting; that they crossed Austin street with shotguns in their hands, and entered the alley in the rear of the Haveman block, through which they passed, south, 250 feet into Bremond street, and thence east to the southeast corner of Haveman's building, on Main street. At this point they turned north, mounting the platform or sidewalk, and walking up it some six or eight feet, or six or eight steps, to the point at which the shooting commenced. Allchin was about thirty or forty feet from them when the first shots were fired. At the first fire the horse, which had been struck in the neck, turned and ran up the street north, or northeast, some twenty or thirty feet, when two other shots were fired by defendants, and Allchin fell to the ground, his gun falling with and under him. After falling he raised himself and turned partly round when the defendants advanced upon him and shot him with their pistols. There were seven or eight shots fired, all of them by the defendants. The first four shots were fired from shot-guns loaded with buck-shot, the others from six-shooters. The first two shots took effect in Allchin's left side; the next two were fired from the rear, and took effect in his back.

There had previously been a deadly feud between the Allchin and the McDade parties in Waller county, the deceased being the head of the former and the defendants being members of the latter party, in the course of which, a few weeks before the shooting now under investigation, the deceased Allchin had killed Chambers, one of the McDade party. The head of the McDade party was Captain T.S. McDade, the sheriff of the county, and the defendants were his deputies. Under the license which the law gave them, they were accustomed to carry pistols on their persons. Allchin and his party were habitually accustomed to carry Winchester rifles wherever they went, and threats on their part to kill, and plots to bring on a difficulty for the purpose of killing the defendants, had been freely made and conveyed to them. It appears also that Allchin was in constant apprehension of being attacked by the defendants, and said he had heard they had threatened to kill him; but no witness testifies to the making of any such threat, or of any threats by the defendants. Without attempting to distribute the blame among the parties to this unfortunate vendetta it may be stated generally that there were brave and determined men on both sides, each thoroughly convinced of the murderous purpose of the others and apt therefore to construe even the most innocent movement into a hostile demonstration. The state of feeling between them was such that an armed collision was imminent whenever the parties met, and seems to have been anticipated by the public generally.

The theory of the state is that the killing was upon express malice, in support of which reliance is had upon the state of feeling shown to have existed between the hostile parties (though none of it is traced by competent evidence, to either of these defendants personally); on the fact that the defendants had shot-guns in their hands when seen a few minutes before the shooting crossing Austin street and going into the alley; that the first shots were delivered from shot-guns, and that instead of passing by a direct line from Wheeler's corner to the point at which the first shots were fired, near the south end of the Haveman block, along the front of the buildings, they had gone through the alley in the rear and around the block whereby the secured the advantage of position, and were enabled to take the deceased by surprise. As conducing to show express malice, stress is also laid on the fact that the last shots were fired after Allchin had fallen mortally wounded, and on the further fact, to which there is, however, a conflict of evidence, that the defendant McDade said to his uncle after the shooting was over, "We got him, Uncle Tom." Some other intemperate language of the defendants, in the heat of the moment, directed at certain of Allchin's party who were supposed to be concealed in neighboring houses, are also claimed to justify the inference of malice.

Looking to the case for the prosecution alone, the evidence of express malice, though sufficient to constitute the "proof evident" required by the constitution to support the judgement refusing bail; but when we come to consider the rebutting evidence produced by the relators, it will appear that the circumstances are all consistent with the theory that they had gone to the place at which the shooting occurred in the execution of their duty as officers of the law; that the meeting with Allchin was entirely casual and unexpected, and that the shooting was in justifiable self-defense, or was, in an event, done under such circumstances as to reduce the offense, if any, from murder on express malice to manslaughter or murder on malice implied.

The regulators were, as we have seen, deputy sheriffs of Waller county. Shortly before the shooting, they had received from the sheriff of Montgomery county a request for the arrest of a man named Bynum, a desperate character who had committed an atrocious murder in Montgomery, and was supposed to have taken refuge in Waller county, where he had relatives. A description of the fugitive was given in the letter which closed with a suggestion of great caution in effecting the arrest on account of the desperate character of the party. The court is requested in this connection to read the letter, which is found on page 115 of the transcript. Its genuineness is admitted by the prosecution. (d. Ibid]

A few minutes before the shooting, the witness Lauraine, who had just read the letter from the sheriff of Montgomery county, remarked to the relator, Springfield, that a man answering to the discription (sic) given in the letter was then at Haveman's corner. Springfield requested witness to go back with him to arrest the man, which the witness declined to do. R., pp. 91, 92. Springfield then went to the relator, McDade, and asked him to go with him and help make the arrest. This was some ten or fifteen minutes before the shooting. R., p. 110. At what point the secured the shotguns does not appear. They were first seen with the guns near the rear end of Wheeler's saloon, and in the act of crossing the street toward the alley. If Allchin was then at the place at which he was killed, as the preponderance of the evidence indicates that he was, it does not appear that the relators saw him or even knew he was in town. Upon the theory that they were going to arrest the man from Montgomery county who was supposed to be at Haveman's corner, their going through the alley and approaching him from the south side of the block is accounted for.

It was only a prudent precaution, under the circumstances. R. p. 92. The guns are accounted for in the same way. They were less likely than pistols to attract the attention of the party they were going to arrest, and were not less efficient in securing his submission.

It is to be noticed that the defendants did not fire from behind the corner of Haveman's building, as they could and certainly would have done had they gone there for purpose of killing Allchin, but that they turned the corner and walked up the platform, eight or ten feet, being themselves fully exposed and without protection, to within thirty of forty feet of the deceased, before they began to shoot.

Allchin was at the time sitting on his horse, with his right leg thrown over the saddle or the animal's neck, and his gun, a Winchester rifle, resting on his lap between his body and the pummel of his saddle. His side was toward them, and the muzzle of his gun was pointing at them.

The testimony of several witnesses for the defendants, which is practically uncontradicted, is to the effect that as the defendants stepped upon the platform at Haveman's corner Allchin took his leg quickly from the neck of his horse (R., p. 70), picked up his gun (R., pp. 107, 87), his hand being already upon it (R. p. 110), and at the same moment someone hallooed "Look out," and the defendants commenced firing.

The witnesses for the prosecution saw Allchin's hands a few moments later, but they did not see them at the critical moment when the defendants raised their guns and before they fired. It is comparatively of little consequence what was the position of his gun or his hands at the later stages of the difficulty.

The witness Avera had shaken hands with Allchin a few moments before and was still within a few feet of him, talking to Burton, Allchin's gun was then across his lap, with his right hand upon it, his left hand holding the reins. The witness did not see deceased at the moment of the shots, having jumped into Haveman's store at the cry, "Look out." "I cannot say he raised his gun, I was not looking right at him, but he had the stock of the gun in his hand and had the reins in his left hand." [R., pp. 110, 111.]

Taylor says he saw the defendants as they got to the gallery at Haveman's. They had guns in their hands. As they stepped on the gallery Allchin's gun was in his lap pointing south toward them. Allchin took up his gun and the reins in his hands all at the same time. Somebody hallooed, "Look out," and the firing commenced. "Allchin's gun was elevated before any shot was fired by defendants." * * * "I could not see if his gun was brought to his shoulder, but it was brought toward his shoulder." [R., p. 107.]

Watson, who was north of the parties, had his back turned toward them at the time of the first shot. He turned at the report and saw Allchin with his gun in his hands. [R., p. 87.]

Allchin's gun, a Winchester rifle, which is short and heavy, was carried with him on the horse from the point at which the first shots were delivered to the point at which he fell, a distance of fifteen or twenty steps, the horse being in a lope or trot. It only fell from the horse when he did, his body resting partly on it. Watson says he saw Allchin as he was in the act of falling from the horse, at which time he still had the gun in his hand. [R., p. 88.] When examined immediately afterward, the gun was at half-cock according to one witness (It., p. 117), and at full cock according to another. [R., p. 77.] The lever used in withdrawing one cartridge and inserting the other was pushed forward to nearly a perpendicular position. The extractor had apparently slipped off the cartridge and failed to withdraw it. There was one cartridge in the gun and another in the carriage which carries the cartridge from the magazine to the barrel. [R., p. 77.] The cartridge which was in the gun had an indentation in the cap, as though some hard substance, such as the hammer would be, had pressed against it. [R., p. 44.]

Only the day before the killing of Allchin had told witness Taylor, who was in his employ, that he did not intend for Dick Springfield and Jack McDade to both pass him on the sidewalk at once, and if the did he was going to "thin them out." [R., p. 71.]

We submit that it reasonably appears from these facts, which are uncontradicted, and which are elicted in great part from hostile witnesses, that Allchin had seen and recognized the defendants as they came upon the sidewalk, and that he had made an attempt, or at least some demonstration which they might reasonably construe into an attempt, to carry out threats of which they had been apprised.

The theory of premeditation is greatly weakened, if not wholly disproved, by the absence of the other members of the McDade party. Captain McDade was, at the time of the shooting, in a remote part of town in conversation with friends. [Li., p. 86.] R.R. McDade was sick in bed (R., p. 67), and Eck McDade was engaged in conversation with the witness Pinkney in front of Wheeler's saloon. [R., p. 46.]

With reference to the shots fired after Allchin had fallen from his horse, it appears that Allchin, who was a very determined and dangerous man, was still struggling and able to raise himself partly from the ground. [R., pp. 35, 25.]

From time to time, through the efforts of Felker, Pinkney and other mutual friends of Allchin and Sheriff McDade, a cessation of hostilities had been agreed on, but only to be afterwards violated or ignored, the parties lacking sufficient confidence in each other to rely upon their compliance with their peaceful engagements. As Allchin expressed it to the witness Callicott, each suspected the other of trying to get the drop on him.

The appellants rely upon the following familiars

SUB-PROPOSITIONS AND AUTHORITIES:

1. Under the liberal provisions of our constitution and laws, the granting of bail is the rule, the denial is the exception, Constitution, bill of rights, s??s. —

2. The purpose of a commitment on preliminary trial is not to punish, but to secure the appearance of the accused to abide the action of the grand jury.

3. The presumption of innocence attends the accused through all the stages of the case, and applies to the grade of the offense as well as to his guilt or innocence, until his guilt is established by competent evidence beyond a reasonable doubt. (C.C.P. ?? 7?7.]

4. When any essential fact (as in this case the fact that the killing was upon express malice) is sought to be established by circumstantial evidences, each fact in the chain of facts necessary to the conclusion of guilt must be established beyond every reasonable doubt by the same weight and force of evidence as the main fact itself, and the facts must be so clearly demonstrated as "not only to be consistent with the defendant's guilt, but absolutely inconsistent with any other hypothesis but that of his guilt.

5. The acts of the appellants are to be judged with reference to the facts as they reasonably appeared to them at the time, and not with reference to the condition of things as now made apparent to us in the light of all the evidence.

6. The character of the homicide, whether culpable or not, and if culpable whether bailable or not, is to be determined with reference to the occurrence of the first shots. If justifiable or excusable in firing those, they would have the right to continue the combat until it reasonably appeared to them that their safety had been secured. And so, if guilty of felonious homicide, they would not loose (sic) the benefit of any mitigating circumstances which might tend to reduce the offense to manslaughter or murder in the second degree; or, even if held guilty of murder in the first degree, which might induce the jury to substitute imprisonment for life in lieu of capital punishment.

7. Where, upon the whole testimony ad????d, the court entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime, bail should be granted. [Ex-parte Smith, 23 C. A. 100, 126.]

8. The greater part of the evidence upon which the case was tried by the district judge consisting of the written record of the testimony taken in the examining court, this court is in as good a position as was the court below to judge of the weight and force of the testimony, and will not hold itself bound by the technical rule which requires an affirmance of the judgement in cases of conflicting evidence.

9. In addition to authorities cited in the briefs of associate counsel, we respectfully refer the court to the following:

1. On express malice and circumstantial evidence to establish it: Farrer's case, 42 Tex., 266, 272-274; McDowell's case, 23 C. A. 679.

2. On threats: Howard's case, 23 C. A. 265.

3. On self-defense: Kendall's case, 8 C. A. 569; Penland's case, 19 C. A. 377.

It is respectfully submitted that upon a review of the whole case in the light of principle and authority, the court will find that the purposes of the law will be subserved by submitting the relators to bail. Should bail be granted, the record furnishes the requisite evidence to enable this court to fix the amount of the bond. R. p. 118.

BASSETT, MUSE & MUSE,

for the relators, Springfield and McDade.

"THE HEMPSTEAD HOMICIDE", Galveston Daily News, Saturday, June 30, 1888, p. 6, col. 1-3.