Abstract of Cases Decided by the Court of Appeal.


McDade vs. the State, from Harris county (change venue); affirmed.

In the McDade case the appeal is from a judgment of conviction for murder of the second degree and eight years sentence to the penitentiary on account of the killing of S. W. Allchin, at Hempstead, in Waller county, which excited so much attention in the press at the time.  In the course of the opinion of the court of appeals, as prepared by the presiding judge, White, the opinion states that it is an uncontroverted fact that the appellant and one Dick Springfield shot and Killed S. W. Allchin, as alleged in the indictment.  This appellant does not deny, but claims that he was justifiable, or, at most that his offense did not amount murder, but was manslaughter.  No issue of manslaughter was submitted on the trial below, and the omission of the charge in this regard is insisted upon as radical error.

About a month before the day of this homicide Allchin had killed one Chambers, a relative of the appellant and a deputy sheriff of Waller county.  Appellant and Springfield were also deputy sheriffs.  Out of the killing of Chambers by Allchin a bitter feud resulted between Allchin and the McDades, or sheriff's party.  A truce was finally agreed upon, in which it was stipulated that Allchin was not to go to Hempstead with his Winchester rifle in his hand, but was to carry it in his buggy or in the holster or scabbard on his saddle when he was on horseback, 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.  There were several ruptures of the agreement by Allchin, which were known to defendant, who, a few days before the killing, received written notice from Harvey that Allchin would be in town with friends Saturday to kill defendant.

The evidence shows threats upon the part of Allchin against defendant, some communicated and others not.  The circumstances of the killing on the fatal Saturday are recited by the court.  Allchin did not fire a shot from his rifle, which he had with him, and it does not appear that he even saw the parties or could have seen them till they fired upon him, as he was sitting upon his horse with his back to them at the time.  Evidence was adduced by appellant tending to show that he and Springfield went from Wheeler's saloon to Haverman's corner, in the manner they did and armed as they were, to arrest a fugitive desperado and murderer from Mondgomery county, for whom that had a warrant and who was reported to them as having been seen at or near Haverman's corner just before they armed and started by the alleyway from Wheeler's, and that their seeing Allchin when they reached Haverman's corner was sudden and wholly unexpected.

Suppose, for argument's sake, in the face of facts to the contrary, we concede this, the court asks, could his mere presence, with his back to them at that, unaccompanied by a simple hostile word or act, save that he had his gun across his lap, have aroused in the mind of a person of ordinary temper any of the emotions of the mind calculated to render it incapable of cool reflection?  But it is said Allchin, having his gun in his lap and not in his gun scabbard, was, under his own agreement, an overt act of hostility, as much so as if the gun were directly drawn and presented upon them.  If such had been the spirit and intent of the agreement as between the parties, the law, the court says, could not afford to tolerate, much less recognize, a doctrine so variant from and at war with every principle it maintains for the welfare of society and the protection of human life, and cannot sanction or mitigate the taking of human life under such pretext.  Because it was so "nominated in the bond," could neither justify nor mitigate or excuse it, if in contravention of the law.  The law cannot and will not 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.  This court holds, consequently, that the court below did not err in declining to submit in the charge to the jury the issue of manslaughter as an issue in this case.  The charge, as to the law of self-defense, was sufficient so far as the facts raise that issue.  The judgement is affirmed.

"Court of Appeal." The Austin Weekly Statesman, Monday, May 23, 1889, p. 6, col. 4.