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Edward Driggers and William R. Fulfer
March 17, 1891 Fannin Co., Texas 



In the Name and by the Authority of the State of Texas:

   The Grand Jurors, good and lawful men of the county of Fannin, and State

 of Texas, duly elected, tried, empaneled, sworn and charged to inquire of

offenses committed within the body of said county of Fannin upon their

oaths, so present in and to the District Court of Fannin County, that Ed

Driggers and Bill Fulfer___________________________________________

_____________________________________________             heretofore, viz:                

on or about the 17th day of  March           in the year of our Lord One Thousand

Eight Hundred and Ninety one in the county of Fannin, State of Texas, did

then and there unlawfully

with their express malice aforethough make an assault in and upon J. T.

Sudderth with the intent of them the said Ed Driggers and Bill Fulfer to kill

and murder him the said J. T. Sudderth






Contrary to the form of the Statute in such cases made and provided, and
against the peace and dignity of the State

J. H. Kincaid

Foreman of Grand Jury


No.4162

The State of Texas                         
             VS                                   

Ed Driggers & Bill Fulfer                                            

Charge of Ast to murder

     A TRUE BILL.

J. H. Kincaid______________________

              Foreman of the Grand Jury.

_________________________________

   Returned into open Court by a quorum of the

Grand Jury, this the 22  day of

     August         A.D. 1891__      

 and filed same day.

       C. H. White________  Clerk.

By___________________Deputy.

Amount of Bail  $

_______________________________       






Names of Witnesses:

J. T. Sudderth______________     

Mrs. Lynch________________

Milton Rowe_______________

Dr. Scott Pendergrass________

Dr. Kimper_________________

Dr. John Pendergrass_________

Mollie Rowe________________

Mrs. Eli Landers_____________

Jesse Briaely________________

Doaly Parish________________              



  The State of Texas,    }               CAUSE No.    4162
   }
Vs______________________   }                                          IN THE DISTRICT COURT         
                       }
Ed  Driggers & Bill Fulfer__     }               of   _____Fannin_____         County.

     GENTLEMEN OF THE JURY:      The defendants Ed Driggers and__________________
Bill Fulfer are__________________________________________________________________________

Charged in the bill of indictment, which has been read to you, with the offense of assault

with intent to Murder____________________________________________________

_________________and have__________   entered their plea of not guilty to the charge.  

1.     I instruct you , gentlemen, that:    The use of any unlawful violence upon the

person of another, with intent to injure him, whatever be the means or the degree of

violence used, is-an assault and battery, and any attempt to commit a battery, or any

threatening gesture showing in itself or by words accompanying it, an immediate

intention, coupled with an ability to commit a battery, is an assault.________________

2.     Every person with a sound memory and discretion, who shall unlawfully kill any

reasonable creature in being within this State, with malice aforethought, either express

or implied, shall be deemed guilty of murder.  Murder is distinguishable from every other

species of homicide by the absence of the circumstances which reduce the offense to

negligent homicide of manslaughter, or which excuse or justify the homicide.__________


3.     Malice aforethought, in its legal sense, means the intentional doing of an unlawful

and wrongful act toward another, without any legal justification or excuse.  Malice

aforethought, in its legal sense, is more comprehensive than anger, hatred, ill-will or

revenge; it means 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, and it includes all states of the mind under which an unlawful killing-takes

place without any cause which will, in law, justify, excuse or extenuate the homicide.


4.     An assault made with intent to take life by means reasonably calculated to effect

that object and under such circumstances that if death had thereby resulted to the person

assaulted the offense would have been murder.  Constitute in Law the offense of assault

with intent to murder.______________________________________________________  


5.               There can be no assault with intent to murder without a specific intent on the part

of the person committing the assault to take the life of the person assaulted.___________


6.     All persons are principals who are guilty of acting together in the commission

of an offense.  When an offense is actually committed by one or more persons but others

are present and knowing the unlawful intent aid by acts those actually engaged in the

commission of the offense such persons so aiding are principal offenders and may be_

prosecuted as such.____________________________________________________  _  


7.           If you believe from the evidence that the defendants Ed Driggers and Bill Fulfer

did, in Fannin County Texas, prior to the 22nd day of August 1891, unlawfully and _____

with their malice aforethought commit an assault upon J. T. Sudderth by shooting at him_
with a gun and a pistol with the intent upon the part of the Defendants to take the life of _

J. T. Sudderth, and that said gun and pistol were in the manner used calculated to produce

death,or serious bodily injury, and if you further so believe that, had death resulted to

said J. T. Sudderth from said assault the offense would have been murder, then you will

find the Defendants guilty as charged in the indictment and assess the punishment of each

of them at confinement in the State Penitentiary for any term of not less than two nor

more than seven years.__________________________________________________


8.     An unlawful assault even though made with deadly weapons, if made without a

specific intent to take life would not be an assault to murder but would be only an

aggravated assault; and even though an unlawful assauld should be made with deadly

weapons and with intent to take life, yet if it be made under such circumstances as would

have made the offense manslaughter if death assaulting, then it would not be an assault

to murder but an aggravated assault.  It thereford becomes necessary for me to explain to

you the law of manslaughter.


8.             Manslaughter is voluntary homicide, committed under the immediate influence of

sudden passion arising from an adequate cause, but neither excused nor justified by law.

by the expression, "Under the immediate influence of sudden passion,"  is meant, that

the provocation: that the act must be directly caused by the passion arising out of the

 provocation; it is not enough that the mind is merely agitated by passion arising from

some other provocation, and the passion intended is either of the emotions of the mind,

known as anger, rage, sudden restment or terror, rendering it incapable of cool

 reflection.

     By "adequate cause" is meant such as would commonly produce a degree of

anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the

mind incapable of cool reflection.


9.             Insulting words or gestures of the person killed toward the slayer are alone not

adaquate cause, but when such are in evidence they may be considered by the party in

jconnection with any other circumstances, if any, in evidence tending to show adequate

cause, and any condition or circumstance which is capable of producing in a person of

ordinary temper and which does produce in the mind of the slayer the sudden passion

herein before referred to, is deemed in law adequate cause.  Insulting words or conduct of

the person killed towards a female relation of the person guilty of the homicide is an

adequate cause.  In order to reduce a voluntary homicide to the grade of manslaughter, it

is necessary, not only that adequate cause existed to produce the sudden passion above

referred to, but that such sudden passion did actually exist in the mind of the slayer at the

time of the commission of the homicide.


11.            If the Defendants Driggers & Fulfer committed an unlawful assault upon J. T.

Sudderth as alleged with intent to take his life, and if at the time they did so they acted

Under the immediate influence of (of) sudden passion arising from an adequate cause

as the same is hereinbefore explained to you, then if death had resulted to J. T. Sudderth

from such assault the offense would have been manslaughter, and if you find such to have

been the facts in this case, or if you find that the Defendants committed as unlawful

assault upon J. T. Sudderth with deadly weapons without an intent to take his life, you

will find the Defendants guilty of aggravated assault and assess the punishment of each

of them at a fine of not less than $25.00 nor more that $1000.00, or imprisonment in the

County jail not less than one month nor more than two years, or by both such fine and

imprisonment.

12.              Violence done or attempted upon another does not amount to an assault when

done or attempted by one in self defense or the defense of another against unlawful

violence offered to his person or force entry, or in preventing or interrupting an

intrusion upon the lawful possession of property.

     Homicide is justifiable, and is no offense against the law, when committed in

necessary self-defense.  This occurs when one is attacked in such manner as to produce

in his mind a reasonable apprehension of death or some serious bodily injury, or where

it reasonably appears to one from the acts, or the acts coupled with the words of the

person killed, that he, the slayer, is in immediate danger of death or serious bodily harm,

and he kills to protect himself from such danger, or apparent danger, then such killing is

deemed to be in necssary self-defense.


     It is not necessary that danger should really exist, in order that the right of self-

defense should arise.  If it reasonably appears to one that here is danger, he has the same

 right to defend himself against it, and to the same extent, as if the danger were real, and

in every case where the question arises as to whether or not an act was done in self

defense, in determining as to whether or not there was reason to apprehend danger, the

facts and circumstances must be viewed and considered from the standpoint of the person

who acted upon them, and from no other.


     No person is bound to retreat in order to avoid the necessity of killing his assailant.


     Homicide is also justifiable by Law when inflicted for the purpose of preventing

the offense of murder, but, in order to justify a killing by one person in behalf or another

it must reasonably appear by acts or words coupled with acts of the person to commit

murder, and the killing must take place while the person killed was in the act of

committing murder or after os much done by him showing evidently an intent to commit

such offense but where a homicide or attempted homicide thak place to prevent murder;

if the weapon or means used by the party attempting or committing such murder are such

as would have been calculated to produce that result, it is to be presumed that the person

so using there designed to inflict such injury.  Homicide is also justificable in the  

protection jof property against any unlawful and violent attack, but in such case the

prossessor of the property, unless his own life or person is in dangaer from such attack,

must make every other effort in his power to repel the aggression before he will be

justified in killing.


13.     Where violence is permitted to effect a lawful purpose only that degree of force

must be used which is necessary on which reasonably appears to the person using it to be

necessary to effect such purpose and if any one in defending his person or property from

an attack or threatened attack uses force excessively beyond what is ,or reasonably

appears to him to be necessary, he becomes himself the aggressor it is not justifiable.


14.         If you should find that the Defendant Ed Driggers shot J. T. Sudderth with a gun,

but should find that at the time he did so J. T. Sudderth had struck or was striking him

with a club or if it reasonably appeared to said Driggers from the acts or the words

coupled with the acts of J. T. Sudderth that he was in immediate danger of bodily injury

and if Driggers used no more force than was necessary or reasonably appeared to him to

be necessary to defend himself from such danger or apparent danger, then such shooting

was justified in self defense and if you find that such shooting by Driggers was in
justifiable self defense or not you will find the Defendant Ed Driggers not guilty.



15.        If you find that the Defendant Bill Fulfer shot J. T. Sudderth with a pistol but

should further find that at the time he did so J. T. Sudderth had struck or was in the act

of striking him with a club or if it reasonably appeared to said Fulfer from the acts or the

acts soupled with the words of said Sudderth that he Fulfer was thereby in immediate

danger of bodily injury and he shot said Sudderth to defend himself from such danger or

apparent danger and that he used no more force than was necessary or than reasonably

appeared to him to be necessary to defend himself, then such shooting by Fulfer was

in justifiable self defense and if you so find, or , if you have a reasonable doubt as to

whether or not such shooting by Fulfer was done in justifiable self defense you will find

the Defendant Bill Fulfer not guilty.


16.     If you find that Defendant Fulfer shot at J. T. Sudderth with a pistol, but that at

the time he did so J. T. Sudderth was in the act of making an unlawful and violent attack

upon Ed Driggers with a club which endangered the life of sanid Driggers, or that said

Sudderth had done or was doing some act showing evidently an intent to murder Ed

Driggers and that Fulfer did such shooting to prevent such shooting by Fulfer was in

justifiable defense of another  and if you so find or if you have a reasonable doubt, as to

 whether Fulfer did such shooting (if he did it) in justifiable defense of another, or, not,

you will find Defendant Fulfer not guilty.  On the other hand you are instructed that even

though you should find that J. T. Sudderth was in the act of killing or about to kill Ed

Driggers with a club and that Bill Fulfer shot Sudderth to prevent Driggers being killed,

yet if Ed Driggers had brought on the difficulty with Sudderth by unlawfully shooting

him with a gun and if Sudderth was acting in his self-defense and if the Defendants Fulfer

knew such was the case, then Fulfer was not justifiable in interfering even though

Driggers was about to lose his life.


18.       Under the indictment in this case you can find either or both the Defendants guilty

of assault to Murder, either or both of them of aggravated assault, or either or both of

them not guilty, according to your judgement of the facts in evidence and of the law as
explained to you in this charge.



19.     If you find that the Defendants are guilty of assault to Murder or of aggravated
assault, and if you have a reasonable doubt as to which of said offenses they are guilty

of, you will find them guilty of aggravated assault, and this rule of reasonable doubt

as to the degree of guilt applies individually to each one of the Defendants whom you

 may find guilty.

20.     The Defendants are both presumed to be innocent until       guilt is established

by legal evidence and if you have a reasonable doubt of        guilt you will find them not

guilty and this rule of presumption of innocence and reasonable doubt applies

individually and separately to each one of the Defendants


21.     You are the Judges of the credibility of the witnesses and the wirght of the

evidence.


                                                                                                O. D. Mc Clellan, Judge of
6th Judicial District of Texas




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