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