COURT OF APPEALS

HON. JOHN P. WHITE, Presiding Judge, and Judges J.M. Hurt and Sam A. Willson.

P. Walton, Clerk.

JACK MCDADE VS. STATE — Appeal from Harris.

Conviction for murder of the second degree with penalty of eight years.  It is an undisputed fact that appellant and Dick Springfield shot and killed the deceased, S. W. Allchin, with shotguns and pistols.  This appellant does not deny, but he claims that his offense was not murder but manslaughter.  The court did not submit a charge upon the issue of manslaughter, and it is insisted that this was error. The facts are thus stated by the court.

About a month before the homicide the deceased Allchin had killed one Chambers, a relative of appellant and a deputy sheriff of Walker (sic) county.  Appellant and Springfield were also deputy sherrifs.  Out of the killing of Chambers a bitter feud arose between the MacDade or sheriff's party and Allchin, which became of so serous a character that mutual friends of the two parties interfered to settle it, and finally arranged a truce of agreement.  It was stipulated in behald of Allchin that he was not to go to Hempstead with his Winchester rifle in his hand, but was to carry it in his buggy or in the xcabbard on his saddle, and that to carry it in any other way was to be considered by the other party as a declaration of hostility.  None of the McDades were to molest him, and if either party heard of threats or ????? against the agreement they were to report to mutual friends.  On one or two occasions, a week or so before the homicide, Allchin was seen by the McDades with his Winchester in his hands on the streets of Hempstead, and they complained of this as exciting their apprehension of danger.  Allchin was told by mutual friends that again to carry his gun in his hand would be to the McDades a declaration of hostility, and he assented to the justice of this statement.  Several breaches of the contract were shown on the part of Allchin and these were known to the defendant.  A few days before the homicidce defendant received a written notice from Harvey that Allchin wold be in town on Saturday with his friends to kill defendant.  The evidence shows threats of death communicated to defendant.  On Saturday Allchin came to town on horseback — was seen at several places.  He had his windhexter with him and was handling it on the depot platform.  Some time before the killing Allchin was on horseback at or near Hamerman's corner, talking to some friends on the sidewalk.  His horse's head was north, or up the street toward Wheeler's saloon. HIs back was to Hamerman's corner and his leg was thrown over the horn of the saddle, and his winchester was lying across his lap, half-cocked, which was the usual way he carried it for safet.  A short time, a few moments before the shooting, appellant and Springfield, who were near Wheeler's saloon, were one of them heard to say to the other: "That's him." or "is not that him down younder now."  They went into the saloon, took a drink and were next seen to emerge with double-barrel shotguns in their hands.  They proceeded diagonally across the street into the alley in rear of the building on the west side of the square; went down this alley rapidly 600 or 700 feet from Wheeler's to the street west of Haverman's and then up asaid street to the front on southeast corner of Haverman's, which brought them to the sidewalk within a few feet of where Allchin was sitting upon his horse as above described, with his back to them.  Just as the got upon the sidewalk some one exclaimed, "Look out!" and the firing began and was kept up by Springfield and appellant until deceased fell from his horse, when they went up to the struggling and almost inanimate body and finished the work by other shots from gun and pistol into his head and face, saying, when they had finished by shooting his face entirely off, "that's the way we do men who murder men on the streets."  Allchin did not fire a shot; nor does it appear that he had time to do so, or even make an effort.  It does not appear that he even saw the parties or could have seen them from the time tye left Wheeler's until they fired upon him.

Evidence was adduced by appellant tending to show that he and Springfield went from Wheeler's to Haverman's in the manner they did and armed as they were for the purpose of arresting a fugitive dedperado and murderer from Montgomery county, for whom they had a warrant and who was reported to be at Hamerman's and that their seeing Allchin was sudden and unexpected.

If it be condeded that the coming upon Allchin was sudden and unexpected and without intentioin or premeditation, could his mere presence, with his back to them at that, unaccompanied by a single hostile word, act or deed, save the single fact that he had his gun across hislap, have aroused in the mind of a person of ordinary temperacy of the emotions of the mind calculated to render it incapable of cool reflection?  But it is said his having his gun in his lap and not in its scabbard was according to his own solemn agreement and contract an overrt act of hostility, as much so as if it were directly and presented upon them.  If such had been the spirit and ???? of the agreement as between parties the law could not afford to tolerate, much less recognize, a doctrine so variant from and at wor with every principle it maintains for the welfare of society and the protection of human live, and sanction or mitigate the taking of life under said pretext.  Because it was "so nominated in the bond(?)" could neither ????? nor mitigate or excuse it if in ???????? of the law.  The law can ???????? permit men to kill each other with impunity, notwithstanding they may have bound themselves to that effect with each other by the most solemn obligations.  There was no error in failing to charge the law of manslaughter.  The charge of the court upon self defense was suggicient and pertinent to the facts in evidence, if indeed the issue of self=defense could in any manner be said to have been legitimately raised by the facts.

The charge of the court upon the presumption of innocence and reasonable doubt omitted the word "legal" before the word evidence.  Hold, not material error, though specially excepted to at that time.

The evidence of Felker was drawn out by the defendant upon the direct examination of his own witness — neither the court nor prosecution were responsible for it.  If the defendant elicits testimony adverse to himself he must abide the consequences.

One of the jurors swears that the verdict was decided by lot.  Ten of his fellows make affidavit to the contrary.  No error in refusing a new trial on this ground.  Affirmed.  Opinion by White, P. J.

"JACK MCDADE VS. STATE" Galveston Daily News, Tuesday, May 21, 1889, p. 5, col. 2

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