No. 1025
The State of Texas ) In The District Court of
) Uvalde County, Texas
VS )
) July Term, A.D. 1893
James Lafferty )
The defendant, James Lafferty, is on trial in this case, and charged with the offense of murder, and pleads not guilty. It is alleged in the indictment in this cause that the defendant, James Lafferty, on or about the 20th day of September A.D. 1892, in the County of Uvalde and State of Texas, did then and there, unlawfully and with malice aforethought, kill Ben Maples by then and there shooting him with a gun; and I give you in charge as the law applicable to this case;
1st That every person with sound memory and discretion, who shall unlawfully kill any reasonable creature being within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.
2nd Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offence to negligent , or manslaughter, of which excuse or justify the homicide.
3rd Malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief; the existence of which is inferred from acts committed, or words spoken.
4th Malice, which is absolutely essential to constitute the offense of murder is either express or implied.
5th All murder committed with express malice, is murder in the first degree, and all murder not of this first degree is murder of the second degree.
6th Express malice, which is absolutely essential to constitute murder in the first degree, is where one, with a sedate, deliberate mind and formed design, unlawfully kills another.
7th When an unlawful killing is established, the condition of the mind of the party killing at the time, and just before and just after the killing , is an important consideration in determining the grade of the homicide; and in determining whether murder has been committed with express malice or not. The important questions for a jury to consider are; do the facts and circumstances in the case at the time of the killing, and before and after that time, having connection with one relation to it, furnish satisfactory evidence of the existence of a sedate, deliberate mind on the part of the person killing, at the time he does the act? And do these facts and circumstances show a formed design to take the life of the person slain, or to inflict on him some serious bodily harm, which in it’s necessary and probable consequences may result in his death? Or, do the facts and circumstances in this case show such a general reckless disregard of human life as necessarily includes a formed design against the life of the slain? If they do, the killing, if it amounts to murder, will be upon express malice.
8th In order to warrant a verdict of murder in the first degree, express malice must be shown by the evidence to have existed; that is, the jury must be satisfied from the evidence beyond a reasonable doubt, that the killing was a consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately, with a sedate mind at a time when the mind of the person killing was self- possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient, all that is required is that the mind be cool and deliberate in forming it’s purpose, and that the design to kill is formed.
9th When the evidence satisfies the mind of the jury, beyond a reasonable doubt, that the killing was the result of a previously formed design by defendant to kill the deceased, and that the design was formed when the mind calm and sedate and capable of contemplating the consequences of the act, proposed to be done by him, and such killing is further shown to have been unlawful, and done with malice, then the homicide is murder in the first degree, and your verdict should be accordingly.
10th The next lower grade of culpable homicide than murder in the first degree, is murder in the second degree; and the law does not further define murder in the second degree, than, that if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the other hand there is nothing in evidence which will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree.
(11th is either missing or the instructions are miss-numbered)
12th The instrument or means by which a homicide is committed is to be taken into consideration in judging of the intention of the party offending.
13th Every person is permitted by the law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justified in using the necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one’s person against an unlawful and violent attack made in such manner as to produce a reasonable expectation or fear of death, or some serious bodily injury; nor is a party whose person is unlawfully attacked in any case bound to retreat before making such defense as the circumstances of the case may reasonably indicate to be necessary for his protection against the attack.
14th If you believe from the evidence, beyond a reasonable doubt, that the defendant, James Lafferty, as charged in the indictment, with express malice aforethought, with a gun, the same being a deadly weapon well calculated and likely to produce death by the manner in which it was used, with a sedate and deliberate mind, and formed design to kill, did unlawfully shoot and thereby kill the said Ben Maples, as charged in the indictment, you will find him guilty of murder in the first degree.
15th (part is missing) . . . the deceased; that he selected and used the weapon reasonably sufficient to accomplish the death by the mode and manner of it’s use; and that the act was not done suddenly, or in transport of passion, without a previously formed design, nor in defense of himself against an unlawful attack, producing a reasonable expectation or fear of death, or serious bodily harm. The act must not result from a mere sudden, rash and immediate design, springing from an inconsiderate impulse, passion or excitement, however unjustifiable and unwarrantable it may be.
16th Upon this question of malice you are further instructed, that if you believe from the evidence that there was and had been previously existing enmity and grudges mutually between the parties, defendant and deceased, only defendant against deceased, yet if there is a reasonable doubt in your minds that the encounter and killing was in fact, actuated by such antecedent malice, but may reasonably have been the result of circumstances which occurred immediately preceding the fatal difficulty, you should not impute the killing to antecedent malice, unless you are satisfied from all the evidence, that this defendant was in fact actuated by antecedent malice.
17th If you believe, from the evidence, beyond a reasonable doubt, that the defendant with a deadly weapon reasonably calculated and likely to produce death by the mode and manner of it’s use, in a sudden transport of passion, and not in defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did shoot and thereby kill Ben Maples, as charged in the indictment, you will find him guilty of murder in the second degree.
18th A reasonable apprehension of death or great bodily harm will excuse a party for using all necessary means or force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger, as it appeared to him at the time.
19th If from the evidence you believe that defendant killed the said Ben Maples, but further believe that at the time of so doing the deceased had made an unlawful attack upon him, or was in the act of making such attack, which, from the manner and character of it caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if deceased was armed at the time he was killed, and was making such unlawful attack on defendant, and if the weapon used by him, and the manner of it’s use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes that deceased intended to murder or maim or inflict serious bodily injury upon defendant.
20th The first question for you __? _____? __? (in considering?), the evidence is whether the defendant, James Lafferty, unlawfully killed the said Ben Maples as charged in the indictment. And if you do not find that the said Ben Maples is dead and that the defendant, James Lafferty unlawfully killed him, then you will return a verdict of not guilty, and your inquiries will then end. If, however, you shall find from the evidence that the defendant, James Lafferty, did unlawfully kill the said Ben maples, then it will be your duty to ascertain from the evidence to what grade of homicide the killing properly belongs. I have advised you what constitutes murder in the first degree and murder in the second degree. The punishment for murder in the first degree shall be by death, or by confinement in the state penitentiary for life, as the jury may determine and state in their verdict. The punishment for murder in the second degree is by confinement in the state penitentiary for not less than five years; it may be for as much longer period as the jury may determine and state in their verdict. Should you find the defendant guilty of murder in the first degree you will so state in your verdict, and fix the punishment at death or at confinement in the penitentiary for life. Should you find the defendant guilty of murder in the second degree, you will say so by your verdict, and fix the punishment at confinement in the penitentiary for any number of years not less than five.
21st The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence, and in case of a reasonable doubt as to his guilt, he is entitled to be acquitted.
22nd If from the evidence you are satisfied beyond a reasonable doubt, that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the
benefit of the such doubt and not find him guilty of a higher grade than murder in the second degree, if of any offense at all. And if you have a reasonable doubt as to the guilt of the defendant of any offense, as charged in the indictment, you must acquit him and say by your verdict “not guilty”.
23rd The jury are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given their testimony.
24th He who seeks and brings on a difficulty with his antagonist, and in such difficulty kills him, will not be justified in law, even though it should appear that his life or person was endangered.
25th If therefore you find from the evidence beyond a reasonable doubt, that the defendant armed himself with a deadly weapon and went upon the ground where deceased was or near to where he was, for the purpose of provoking or bringing on a difficulty with the deceased, in order to obtain a pretext for the killing of the deceased, or for inflicting serious bodily injury upon him, and under such circumstances, deliberately and with ordered mind, shot and killed the deceased, then the defendant could not justify the killing upon the ground of self defense, and the homicide would, under such circumstances, be murder in the first degree, notwithstanding that at the time of the killing the deceased may have been making a dangerous attack upon defendant with a deadly weapon.
26th If you believe from the evidence, beyond a reasonable doubt, that the defendant provoked a contest with the deceased, with the intention of killing him, or inflicting serious bodily injury upon him and that during the contest thus provoked, the defendant, suddenly and without deliberation, in order to save his own life, or to prevent the infliction of serious bodily injury upon himself, shot and killed the deceased, then in that event the homicide would not be justifiable, but would be murder in the second degree.
27th But if you find from the evidence, beyond a reasonable doubt, that the defendant, by wrongful act, provoked a contest or difficulty with the deceased, but that he did so without any intention to kill deceased or to inflict serious bodily injury upon him, and thereby created the necessity for taking the life of deceased in order to save his own life or to prevent serious bodily injury to himself, and that under such circumstances, and under apprehension or fear of death, or the infliction of serious bodily injury upon himself by the deceased, he did, during such event, suddenly, without deliberation, and under the immediate influence of sudden passion rendering the mind incapable of cool reflection and seriously contemplating the nature and consequences of the act done, shoot and kill deceased, then the homicide would not be justifiable, but would be manslaughter.
28th The punishment for manslaughter is confinement in the penitentiary for not less than two nor more than five years.
29th If from the evidence you believe beyond a reasonable doubt, that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt, whether the offense, if any, is murder in the second degree or manslaughter, then you must give the defendant the benefit of such doubt, and find him guilty of manslaughter.
30th If from the evidence, you are satisfied beyond a reasonable doubt, that the defendant is guilty of manslaughter you will so say in your verdict and access his punishment at confinement in the penitentiary for a term of not less than two nor more that five years.
31st Where a defendant seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce witnesses of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that at the time of the homicide the person killed by same act then done, manifested an intention to execute the threat so made.
/s/ W.W. Martin
Special Judge
No. 1028
The State of Texas
VS
James Lafferty
Charges of Term Court
Filed July 22 1893
W.H. Beaumont
Clk Dist Court
Uvalde Co. Tex.
Transcribed by:
Norma Brown Martin
29 November 2004
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