It occurs to me that, as a practical matter, the effect of the majority opinion is to hold that it is not murder in the first degree to kill an armed man. Appellant testified that he beat White, the deceased, "to the draw." But no witness corroborated this statement, and every fact and circumstance contradicts it, and the jury did not believe it. Appellant could have said nothing else, unless, indeed, he had pleaded guilty.
All the testimony — save that of appellant — would have supported these findings. Both men were armed, but there was no question as to who was the aggressor. A year prior White had shot appellant, who had not forgiven, and White had not forgotten. White was armed; but this was for defense, and not for aggression. Appellant sought the difficulty, while White was attempting to avoid it.
The killing occurred Sunday afternoon. White was at the home of Clint Williams, cutting Williams' hair. Williams told White that appellant was coming, whereupon White mounted his mule and rode away. Williams said appellant could hardly have avoided seeing White leave the house on the mule.
White went to the home of James Williams, and when Clint Williams saw that appellant was going to follow, he admonished appellant "not to go over there and get into it again." Appellant said "I won't," but he did. *Page 747
No quarrel occurred at Jim Williams' home. Jim testified that as appellant came upon his porch he (appellant) drew his gun, cocked it and began firing as soon as he entered the door. White was shot twice, once through the right shoulder, the other time through the right side. The jury might well have found, from the testimony of all the persons in the Williams' home, that White made no attempt to draw his pistol until he had been shot twice, and that White did not fire his pistol.
Appellant's remark immediately after killing White explains this case. He said: "He shot me, and I killed him." Here, was malice, deliberation and premeditation; at least, the jury which heard the testimony might have so found, and did find. Appellant was in no danger except the possibility that the fleeing man might, like a worm, turn to defend himself when nothing else remained to be done.
White had the advantage of position, for Jim Williams had told him that appellant was coming; but he made no attempt to use this advantage. His reluctance to kill appellant probably cost him his own life. No one saw White draw his gun, although it was in his hand when he fell, and was found on the floor. No person in the house testified that White ever fired his pistol, and the jury might well have found, and, no doubt, did find, as the verdict reflects, that White made no attempt to draw his pistol until he had been twice shot. If appellant's testimony is untrue — and the jury did not believe it — he pursued White and killed him, for the reason given by himself, that "he shot me, and I killed him."
I think the judgment of the court below should not be disturbed, and I therefore, dissent. *Page 748