People v. Cowan

ALLEN, J.

Defendant was by information accused of murder, and was convicted of manslaughter; and from the judgment and order denying a new trial he prosecutes this appeal.

The record discloses that defendant and a number of others conspired together to commit an unlawful act, by taking forcibly from a jail the deceased, who was a prisoner therein, and applying to his person a coat of tar and feathers. After such a conspiracy was formed, the defendant armed himself with a gun and joined his co-conspirators at the jail, where the same was broken open and the "prisoner rushed therefrom into the crowd of conspirators on the outside. Shortly after he emerged from the building, and when the deceased was but a few feet therefrom, a shot was fired by the defendant at him, and almost immediately thereafter he was grappled by another one of the crowd, and while engaged in a scuffle with the party who had seized hold of him, another shot was fired and the deceased thereupon sank to the ground, or was thrown down by his assailant, his clothing torn from his body, and crude oil and feathers applied. The deceased was then carried back to the jail building and the crowd separated. It is evident from the character of the injury inflicted by the fatal shot that the deceased was dying, if not already dead, when the oil and feathers were applied. The testimony is convincing that defendant actually fired the first shot, and-there was ample testimony to justify the jury in determining-that he fired the second shot as well. Strange as it may seem, it appears affirmatively from the record that none of the participants were punished, or any attempt made in that direction by the authorities, except this proceeding against defendant, in which ease the jury satisfied its conscience by a verdict of manslaughter.

Notwithstanding the brutal character of the crime, and the-undoubted guilt of the defendant, he, nevertheless, on this

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appeal insists that the judgment should be reversed upon purely technical grounds. Chief among these is, that the court erred in expressing an opinion as to the weight of evidence in the presence and hearing of the jury. This statement was induced by reason of expert testimony to the effect that it was not possible for deceased, owing to the character of the wounds, to have taken a step after being shot, that paralysis must have necessarily ensued immediately. The statement of the court was in effect that it was evident that he was not paralyzed when he was running, nor when he was scuffling with his assailant. If there was any error or impropriety in such statement, it was in support of defendant’s theory, who was seeking to establish that, while he did fire the first shot, some one else fired the second. The effect of this statement of the court could only have been favorable to defendant’s theory, and he should not be heard to complain.