A Trial in Uvalde

Setting the Stage

October 6, 2008

In 1892 a murder was committed on the banks of the Dry Frio River in Uvalde County, Texas. According to witnesses, Benjamin Maples and his son were unloading a wagon prior to crossing the Dry Frio River in front of the cabin where John Henry and Maggie Cox Lafferty lived. James Lafferty, brother of John Henry, went into the cabin and came out with a gun. He walked to the wagon and exchanged words with Ben Maples before shooting him.

James Lafferty was tried and convicted of the murder. The story of the trial, trial documents, witness lists and prison records weave a story that sadly tells us much about the intwined lives of the involved families.

Ben Maples was married to Seralda Cox, and the Lafferty family was living in a cabin on the Dry Frio River that was owned by Maples. Maggie Lafferty (born Margaret Ann Cox, daughter of Hugh Cox and Sarah Turnbough). John Lafferty was a ‘member in good standing of the community’, according to Allen Stovall in “Breaks of the Balcones” — but his brother had been running with a gang of outlaws and cattle rustlers.

A Texas Criminal Court of Appeals reveals that James Lafferty tried to overturn his conviction in 1893 without success. He entered prison at Huntsville on December 15, 1893 to begin serving a 75 year sentence. Just three years later, a prison guard named Dan McMillian (married to Ben Maples daughter) shot James Lafferty to avenge his father-in-law’s murder. Prison records show that Lafferty died on September 12, 1896 of “heart failure”.

Notes on the Trial/Events

October 5, 2008

Provided by Debrah Modrall

According to court records in Uvalde Co. Tx. James is the brother of John H. Lafferty that married Maggie Cox. Do you have a list of John’s brothers & sisters? You don’t have a James as his brother? Who were John’s parents?

James also was one to get into a little trouble. He had been in prison before in Rusk, I don’t know if that’s the town in Cherokee Co. Tx. or the county of Rusk in Texas. Do you know of an old prison there? And according to a history book of the area, Breaks of the Balconies he had run with a gang and was involved in at least one murder.

It is sort of a long story of why I got interested in James Lafferty (born about 1848) brother of John H. My Gr.Gr. Grandfather is Benjamin Franklin Maples. He was murdered in Uvalde Co. Tx. Sept. 20, 1892 by James Lafferty. At that time James was living with his brother John and his wife Maggie near Reagan Wells on the Dry Frio River. Maples was married to Serilda Cox, probably cousin to Maggie. These families are really all mixed up. I suspect I will find a connection between the Cox, Maples & Lafferty families besides with Maggie. Anyway, James admitted to the murder but said it was self defense. He was found guilty of 2nd degree murder & sentenced to 75 years in prison. Though he was only in there about three years because according to that  same history book he was shot by Dan McMillan a son-in-law of Maples who worked at the prison.  James’s prison record just says he died of heart failure but I can understand why they wouldn’t want it to be recorded that he was shot by one of there (probably drunk) guards.

When I became interested in family history & found out about the murder I was just more than interested. I’ve actually been obsessed with learning the reason behind it. My family said it was over a fence line and my Grandmother was very very secretive about her family and swore she’d never talk to me about them. I was not even allowed to talk to my Grandpa about his family in her presence. She meant what she said! But before she died of Ahlsheimers? she said some things that made me think there had been sexual abuse by her father.

I talked with many people. The Maples still living in that area thought the murder was because Lafferty had something to do with Bens wife, others said his daughter and when Lafferty said “You can just keep the half breed.”  Ben called him an SOB and Lafferty killed him. A historian from there George Nelson that has written a few books & whose family has been there forever had some good stories to tell about the murder but he did say it was here say. It had been passed down in his family that it was because Serilda was part black. He said Maples & Lafferty had gotten into a fight and Lafferty said quote “If you’re married to a Nig__ you ain’t no better that a Nig__

Trial Testimony

October 4, 2008

NO. 1028

The State of Texas ) In the District Court of
)
V.S.       ) Uvalde County, Texas
)
James Lafferty     ) July and August Term, A.D. 1893

Be it remembered that in the trial of this cause the following facts were proved:

Jake OBryant, testified for the State as follows:
On the 20th day of September, A.D. 1892, I was returning home from Uvalde in a two-horse wagon, with my wife.  We stopped at John Lafferty’s gate to deliver some bacon we had brought to him.  John Lafferty is a brother of the defendant.  The defendant James Laffetty was there.  He and John Lafferty’s wife came out to the wagon where we were.  We had a short conversation with them.  I commenced to talk with defendant about Indian claims.  While we were talking, Ben Maples drove up with a load of poles within about forty yards of where we were, and commenced to unload them.  Robert Maples the son of Ben Maples, (the deceased), was with him. So deceased drove up and before defendant and I had finished our conversation, defendant went into the house, entering at the front door, and carried the bacon with him.  I waited a short time, and as he did not return, I drove down to where deceased and his son were unloading the poles, and engaged in a conversation with him.  While I was talking to deceased, he stepped to where his gun was standing by a tree near his wagon and picked it up.  As he did this, he remarks “What does that mean” and stepped out a few steps with his gun in his hand in the direction of the house.  As he did this I looked and saw defendant coming towards deceased, with a double-barrel shot gun in his hands pointed in the direction of deceased.  Defendant at this time was outside the gate advancing towards deceased, and was about six or seven steps from him.  I immediately whipped up my horses, and started off in a trot.  So as I drove off I heard defendant say “Put down your gun.”  I heard him say this three times. I did not hear the deceased say anything in reply.  The defendant spoke in a low voice.  After I had got off some distance I heard the report of a gun.  I looked back and saw defendant going towards the house, and saw deceased lying near the heads of his mules.  I would not say positively whether it was defendant or Bingham that I saw going towards the house, but I took it to be defendant.  I was driving in a fast trot. My wife was in the wagon with me.  This occurred in Uvalde County, State of Texas.  About a month ago I had a conversation with defendant.  I was in my wagon going along the road towards home.  Defendant and someone else came up in a hack.  He got out of the hack and came and got into the wagon with me, and commenced talking about his case.  In the conversation he said, “If anyone swears a lie against me in my case, I will kill him.”  I replied, “I don’t blame you.  No body ought to swear a lie against you.”  After riding a little further, he got out and went to the hack.  As he got out, he said, ” I want you to remember what I said.”

Cross Examined:
Deceased picked up his gun and stepped off in the direction of defendant.  He had his gun in his right hand and across his left arm in front of him. Defendant at this time was about twenty steps from the gate coming in the direction of deceased.  They met to the right of the hind part of my wagon.  I drove nearly to the creek before I heard the shot.  Bingham was standing there looking on.  He was at the house when we got there.  After we drove to where deceased was, Bingham came.  I never heard him say anything.

Here for the purpose of laying a predicate to impeach the witness, the defense asked the question: “Didn’t you on your way home from  where the killing occurred stop at the house of “(the name of the person is forgotten by me,)”and in telling of the occurrence, say that Maples had killed Lafferty?”  The witness replied “I did not.”

The impeaching witness, whose name I have forgotten, was afterward introduced by the defense and he testified as follows: “Jake OBryant and his wife came by my house on their way home and stopped and told me of the killing.  In talking about it, Jake OBryant said “Maples had killed Lafferty.”  His wife spoke up and said, “No, Lafferty killed Maples.”

Mrs. Jake OBryant testified for the State as follows:
My husband and I were on our way home from Uvalde.  We stopped at John Lafferty’s to leave some bacon.  James Lafferty came out, talked a little with my husband, got the bacon and went back in the house.  Mrs. John Lafferty and Tom Bingham were there at the house when we.

(top part of page missing)… went into the house with the bacon, Mr. Maples, the deceased, and his little son, Robert, drove up to within forty or fifty yards of where we were with a load of poles, and commenced to unload them.  We waited a little while after the defendant went in the house, and then drove down to where the deceased was, and commenced to talk with him.  While we were waiting at the gate I saw the defendant in the house and saw him to to the mantel-piece and get something off it.  I don’t know what it was he got.  While we were talking to deceased, he looked towards the house, stepped and picked up his gun that was by a tree near his wagon, remarking at the time, “What does that mean?”  After getting his gun he stepped off a few steps in the direction of the house with his gun in front of him.  The back of our wagon was towards the house.  As deceased stepped off, I turned and looked and saw defendant on the outside of the gate with a gun coming in the direction of deceased.  When I first saw defendant he was some distance from the gate.  I don’t know exactly how far.  Maybe fifteen or twenty steps.  He had his gun up pointing towards deceased.  My husband drove off in a trot.  As we drove off I heard defendant tell deceased in a low voice to put down his gun.  After we had got off some distance, to about the top of the creek bank, I heard the report of a gun. I looked round and saw deceased staggering back towards his wagon, and the defendant going towards the house.  We drove on rapidly down the hill.

Cross examined:
Mr. Tom Bingham came out to where deceased and we were. He was standing near there.  I did not hear him say anything.

Robert Maples testified for the state as follows:
Father and I went to where the killing occurred with a part of a load of poles and were unloading them there.  We were getting out poles to haul to town to sell.  The creek bank near this place was very bad and bad and steep and we had to haul small loads to this place and unload and go back for the balance of the load.  We could not haul a full load up the creek bank. We had been doing this for two or three years.  Others had been doing the same.  All those who hauled poled to town from our neighborhood were in the habit of unloading and reloading poles at this place.  We left home that day about 3 o’clock.  When we drove up to the place where we were unloading the poles, we had a 32 caliber Winchester rifle on the wagon, a gun that my father always carried with him.  He took it off the wagon and sat it down by a tree.  As we drove up, I saw defendant leave Mr. OBryant’s wagon and go into the house, where he remained several minutes.  We commenced to unload the poles, and Mr. OBryant and his wife drove down to where we were and commenced talking to my father.  I then saw the defendant come out of the house with a gun.  He came out at the front door, came on out of the yard and down towards where we were.  As he was coming towards us, my father picked up his gun and stepped out a few steps.  Before my father picked up his gun, I heard him say, “What does that mean.”  As defendant came on, he threw his gun up on my father.  At the time he did this, my father had his gun in his right hand down by his side.  When he did this my father began to step backwards, and the defendant kept advancing towards him with his gun up.  Defendant told my father to drop his gun.  Defendant fired and my father fell.  The defendant then started back towards the house.  My father spoke to me, and told me to shoot him.  I picked up the gun and shot at defendant.  At the time defendant shot my father, my father was going backwards, and had his gun down by his side.  He did not have it up and pointing towards defendant.  When the defendant shot my father they were five or six steps apart.  My father fell near the heads of our mules that were hitched to the wagon.  When I went to my father after the shooting, he was dead.  James Lafferty killed him.  The gun Lafferty had was a double-barrel shot gun.  I saw the wound on my father.  It went through the muscle of the lift arm and into the left side a little below and back of the left nipple.  The wound showed to be made with buck shot or small bullets.  (Here the witness illustrated that the portion of the arm through which the wound was made, was down by the side at the time it was made.)

On the day before the killing defendant came to my father’s house.  If he had any particular business there I don’t know what it was. They got to talking something about a petition that was said to have been circulated by my father to put down the price of poles.  My father told the defendant he had been telling things about him that were not so.  They got into a quarrel and the lie passed between them.  My father told him to leave the house, that he had been telling a pack of damned lies on him.  Defendant went out and got on his horse and rode off.  As he rode off, he said to my father, “I will bring you to your knees for this before a wee_.

Cross examined:
I am fifteen years old.  My two little sisters were in the cook room, and heard part of the conversation between my father and the defendant.  I have never told anyone until today what I would swear on this trial, not even my mother and sisters.

Redirect:
I have talked to persons about the case; but have never until today told just what I would swear to.

Owen, a witness for the State testified as follows:
I got to the body shortly after the killing.  I don’t know what time it was. Probably 3 or 4 o’clock in the evening.  Blackman and others were there.  I don’t know whether Naylor was there or not.  I helped to dress the body.  Saw the wound.  The wound passed through the front part of the muscle of the arm above the elbow and into the left side a little below and a little back of the left nipple, cutting straight across the muscle of the arm. The wound looked to have been made with buck-shot.  Only one or two shot cut across the arm.  I took some gun wadding from the arm.  The body was about three steps from the road and (writing lost when copy made) fifty yard from the house.  (Here this witness illustrates the position of the body and arm at the time the wound was received by placing his arm against his side and pointing out on what part of the arm the wound cut across and into what part of the side it enters, showing that the arm was hanging down by the side at the time the wound was received.)

Miss Ida Maples testifies on behalf of the State as follows:
I saw James Lafferty at our house on the 19th day of September, 1892.  Father was at home.  Father was there.  I heard low and angry talking, and went round to the front of the house where my father and Lafferty were.  I heard Father say to Lafferty, “You have been telling a pack of damn lies on me.”  Lafferty got on his horse and started off. He said to my father, “I will bring you to your knees for this.”  I saw father dead next day near John Lafferty’s house.  Father carried his gun nearly every where he went.  I did not hear any shots the day my father was killed.

Cross examined:
Shortly after the killing, about half an hour, my brother Robert told me about it.  I never told Mrs. Lafferty on the day of the killing that I knew Father and Lafferty were going to have trouble when Father left home that morning.

Miss Maggie Maples testifies in behalf of the State as follows:
My father was killed on the 20th day of September, 1892.  I saw the defendant, James Lafferty at my father’s house on the day before my father was killed.  He came there on horseback.  I was in the kitchen and heard my father and the defendant talking angrily.  I went to the door.  I heard my father say to defendant that he had been telling lies on him.  Defendant got on his horse and left.  After he got on his horse he said to my father, “I will bring you to your knees for that.”

Cross examined:
My brother Robert came home and told about my father being killed.  I never told any one but Mr. Storms, the Dist. Attorney, and the grand jury what I would swear.  I did not tell Mrs. Lafferty that I was expecting my father and defendant to have a row. I told her about the row they had the day before.

J.A. Robinson testifies in behalf of the State as follows:
I examined the body of Ben Maples.  I found a wound upon his left arm and in his left side.  I examined the body at (illegible) the same day of the killing. I am Justice of the Peace of Precinct No. 4 Uvalde County.  I examined the body in the capacity of coroner.  The wound was in the muscle of the left arm above the elbow, in front, and in the left side a little below and a little behind the left nipple.  The wound in the body was sufficient to produce death.  The body was about 40 yards from John Lafferty’s house, near the Uvalde road.  Thomas Bingham, Geo. Kelley, Dug Naylor, Mr. Owens, Jim Kelly, R. Blackman, and Jim Blakeney were there.  Defendant was then at John Lafferty’s but was not under arms.  About two shots had cut across the muscle of the arm.  The wound seemed to have been made with buck-shot.  From the appearance of the wound, the arm was down by the side when it was made.

(Name lost due to page positioning when copied) . . . of the defense as follows:
I was there after the killing.  Saw the body about 27 steps from John Lafferty’s gate.  I examined the wound.  It cut straight across the muscle of the arm, and entered the side just under the left nipple.  The muscle of the arm must have been down.

Redding Blackman testifies in behalf of the defense as follows:
I was at the place of the killing shortly after it occurred.  Lafferty sent for me.  He surrendered to me.  I was ___? Sheriff.  The body was about 40 or 50 yards from Lafferty’s house. Maples’ little girls were there.

Cross examined:
I did not take charge of the defendant.  Did not keep him under guard.  He went where he pleased.  I was looking after the deceased and could not look after the defendant.

T.H. Cummings testifies for the defense as follows:
I went with R. Blackman to the body.  I saw defendant surrender to Blackman.  I examined the wounds.  They were in the arm and underarm near the left nipple.

Tom Bingham for the defense, testifies as follows:
I was present at the time of the killing and saw it all.  I went out to where Maples was unloading poles.  OBryant and his wife were there in a wagon.  I saw Maples grab his gun and start towards Lafferty who was in the road coming towards us.  Defendant had a double-barrel shotgun.  Defendant said to Maples, “Drop your gun.”  Maples said, “Drop nothing.”  Defendant said, “I want no rucus.”  Defendant had his gun up pointing in the direction of deceased.  He continued to advance towards deceased, who retreated towards some trees that were about as big as a man’s thigh.  Maples had his gun up pointing towards defendant. Defendant told deceased several times to drop his gun, and then fired and Maples fell.  Robert Maples picked up his father’s gun and fired towards defendant as he was going back toward the house.  OBryant and wife were there immediately before the shooting but drove off.  Defendant was making his home at John Lafferty’s.  Lafferty told me within five minutes after the shooting that he and Mapels had trouble before at Maples’ house and that Maples called him a damned half-breed son of a bitch.

Cross examined:
If the defendant said any thing min this conversation, I do not remember it.  I don’t think he said anything else.  I did not hear deceased say anything when he picked up his gun.  All I heard him say was, “Drop nothing.”  He said this when Lafferty told him to drop his gun.  I did not see defendant until after he spoke and told deceased to drop his gun.   He then had his gun up in his hands pointing toward deceased.  I think Maples backed ten or fifteen steps before defendant fired.  They were five or six steps apart when defendant fired.

Re direct:
If defendant said anything more than I have stated, in the conversation he had with me after the shooting, I don’t remember it.  I think I have told all he said.

John Lafferty testifies for the defense as follows:
I am a brother to the defendant.  I knew Maples.  Defendant was living at my house when the killing occurred.  He had left the country before this to go to New Mexico, and had returned two days before the killing.  The double-barrel shot gun was mine.  I loaded it a week or ten days before with buck-shot to kill deer.  I kept it in a rack in the house.  Never kept caps on it in the house.  After defendant left the county, I heard Maples say, “It is a good thing Jim Lafferty left, for if we had met again I would have used my gun on him.”  I told this to my brother on the morning of the day of the difficulty. (Note: there is a little ^ indication between the word “the” and “difficulty”.  Written above the phrase is “(1 day after)”)

Cross examined:
The deceased and I were traveling together when he told me about using his gun on my brother.  We had stopped in camp for dinner.  No one else was with us.  Deceased and I were friendly.  We remained friendly.  His talking this way about my brother did not make me mad with him.  I did not care any thing about it.  My brother was gone out of the country and it was no concern of mine.  I never told my brother about this until on the morning of the day of the killing.  He and I were going up the river that morning and I told him. No one else was with us.  Soon after I had told him, we met some men, and he turned and went back home.  When I got back home I found Maples killed.  The water road runs angling from my house towards the river.  The public road runs near my fence.  My gun had no caps on it when I put it in the rack.  I usually kept the caps in a box over the mantel piece.  If any one had used the gun from the time I put it in the rack till the day of the killing, I don’t know it.  The place when Maple was killed is the place where those who hauled poles to town usually unloaded.

Re direct:
My brother was in the penitentiary at Rusk several years, and I did not see him.  This is one reason why I did not tell him about what deceased had said to me about taking his gun to him.

Mrs. Maggie Lafferty testifies for the defense as follows:
The killing was near our house.  It was Jim Lafferty’s home at that time.  James Lafferty, myself, Mr. OBryant and Mrs. OBryant were talking at our gate.  Tom Bingham was some where about the place.  James Lafferty went into the house with some bacon.  Just at this time Ben Maples and his little son drove u and commenced to throw some poles off his wagon.  OBryant drove down to where he was.  I went into the house.  I saw defendant in the house.   I went into another room.  I did not see Jim Lafferty with a gun as I went into the house.  He was near the fireplace.  After I went into the other room, I heard the children hollering.  I looked out at the window and saw them at the gate, coming from towards the spring.  They often hollered this way.  Sometimes they would see a snake and come hollering and tell me about it.  I several times went down to the creek and killed snakes they had found.  When I looked out, I saw the defendant pass out at the gate with the gun.  The next thing I saw was Ben Maples with his gun in his hands.  I did not go out of the house.  I heard defendant say, “Put down your gun”, an heard Maples reply “I put nothing down excepting with my life.”  I knew Miss Maggie Maples and Miss Ida Maples.  Maggie Maples told me she was not surprised when she heard of the killing, because her father and James Lafferty had had a row the day before.  I did not talk with Ida Maples about it.  She was out somewhere with the children when Maggie told me this.

Thomas H. Blakeney testifies for the defense as follows:
Ben Maples body was a short distance from John Lafferty’s house and from 10 to 15 feet from some ties.  There are several trees about there.  The trees are about the size of a man’s thigh.  I have known Maples about 10 or 15 years.  I’m acquainted with his general reputation.  He was a quarrelsome man.  Jim Kelly was with me when I stepped the distance from the gate to the body.  It was 27 steps.

Lee Lankford, for the defense, said:
I have known Ben Maples for a long time.  He was a troublesome character, often having rows with his kinfolks and others.

Cummings, for defense, said:
I have known Maples for 10 or 15 years, his reputation was bad.

Cross examined:
I can’t say his reputation for being a dangerous man was bad.  Don’t think he was dangerous.

(Defense rested.)

Owens, for the State, said:
I saw defendant after the killing and had a talk with him.  He asked me what I thought about his case.  I told him I could not tell anything about it unless I knew how it happened.  He then showed me the place where the killing took place and said, “I got the drop on him and I kept it, did not propose to let him get the advantage of me.”

L. Swarts for the State said:
I live here.  Have lived here for 14 years.  I knew Ben Maples.  I knew his general reputation in the community in which he lived.  His general reputation was that of a peaceable and quiet citizen.

The counsel for the state and defendant having failed to agree upon a statement of facts herein, the above and foregoing statement as made out by me; and I hereby certify that the same is correct, and that it contains all the material facts proved in the trial of the cause.

/s/ W.W. Martin,
Special Judge

Transcript provided by Debrah Modrall

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

Appeal

October 2, 2008

These documents were provided by Debrah Modrall.

Appeal notes – Page 1
Appeal notes – Page 2
Appeal notes – Page 3
Appeal notes – Page 4

Transcription as written:

James Lofferty, Appellant
vs
The State of Texas

In the Court of Criminal
Appeals of the State of Texas
October Term AD 1893

To the Honorable Court of Appeals of the State of Texas:

James Lafferty, the appellant herein, would respectfully assign as error in the trial of this cause in the court below, the following, towit:

First.  The Court errored in overruling the defendants application for a continuance, as pointed out in defendants Bill of Exception, No. 1. because said application was sufficient in law and showed due and sufficient diligence upon the part of the defendant to procure the testimony of the witnesses named therein, and because the testimony of said witnesses was material to the defense in this cause.
The testimony of the witness Dug [Douglas E.] Naylor being material 1st to discredit the testimony of the state’s witness on the trial of this ??? Bob Maples by showing that he had made contradictory statements about the circumstances of the killing of Ben Maples by defendant.  2nd to show that the deceased, according to the statement of his son just after the killing, made to an officer, was the aggressor, and not this defendant, that deceased was armed and advansing on defendant with his gun at the time he was shot by defendant, and that he was do intent and determined on attacking defendant that he could not be kept back; and because the testimony of said Dug Naylor will further show, and thereby discredit the theory of the state, and the state witness, that an exammination of the body, and the wounds thereon, and the premises where deceased was killed, just after the killing that at the time deceased was shot he had his arm ?? which the shot is shown to have passed in the position his arm would have been in presenting a gun to shoot and not hanging down by his side.

Second.  The testimony of the witness Wall is material to show the object and intent of deceased towards the defendant, by showing by his acts and looks that he was there for the purpose of raising a difficulty with defendant, that he was watching around the premises of defendent before defendent went out of the house and that he seemed to be angry.

Third.  That the testimony of the witness [William] Friday was material to show that defendant had sufficient and reasonable grounds to fear and expect an unlawful attack upon his person by deceased, by reason of deceased having stated to the witness Friday, a short time before the killing, that he was going to kill defendant by said witness that acting upon this knowledge of the threats made by deceased and seeing him about his premises armed and in a threating manner and attitude towards deft he was justified in shooting deceased.

Second.  The court erred in refusing the defendants request in the following, (also pointed out in defendants Bill of Exception No. 2) towit:  After the exammination in chief of defendants witness, Bingham, he was turned over to the state and was asked by the state, “if defendant did not tell him a few moments after the shooting of deceased by defendant, that he, defendant, had had a row the day before, whereupon the witness answered that, “defendant said to him a few minutes after the shooting of deceased by defendant that Maples had sent for him the day before and when he went over to see him Maples cursed and abused him.

Fourth.  The court erred in the 13th paragraph of its charge in not sufficiently defining when homicide is justifiable, this being a fundamental requirement.  the facts and issues of this can clearly requiring a full and complete charge upon justifiable homicide.  The charge here complained of being insufficient, the fury even misled thereby to the injury and prejudice of defendants rights in the trial.

Fifth.  The court erred in submitting to the jury the 16th paragraph of its charge, because not warranted by the evidence adduced on the trial, therefore not the law of the case, and mascalculated to mislead the jury to defendants injury and did so mislead them as shown by their verdict herein.

Sixth.  The court erred in submitting to the jury the 25th paragraph of its charge, because the same was unauthorized by the evidenced addused on the trial, and was not the law of the case as made by the evidense, and was calculated to confuse, mislead and misdirect the minds of the jury as to defendants rights and privileges in the premises, under the law.

Seventh.  The court erred in submitting paragraph 26th of its charge to the jury, because it was not the law of the case as made by the evidence on the trial, and for the reasons set forth in the sixth assignment of error.

Eighth.  The court erred in submitting the 27th paragraph of its charges to the jury, becasue the charge was no where defines and informs the jury what ….. [end of document provided for transcription]