"The proof for the Commonwealth on the trial showed in brief these
facts:--
"On the night before the homicide Beach Hargis had gone to his
father's store and asked one of the clerks for a pistol. The clerk
declined to give him a pistol out of the stock, but told him that
his father's pistol was there in a drawer of his desk and he could
take that. The defendant secured the pistol, but said nothing to
his father, although he was then in the store. The next morning
between nine and ten o'clock the defendant was sitting in the
barber shop. His face was swollen. He told the barber that his
father had hit him in the mouth and hurt him there. A man who
looked like his father passed. He raised up in the chair, threw
his hand back and said: 'I thought that was the old man.' About
an hour later he drank a bottle of Brown's Bitters, and said to a
bystander: 'Did you hear about the old man mashing my mouth?' and
added that it was hard to take. Some two hours later he appeared
at a drug store kept by his brother-in-law, Dr. Hogg, drew his
pistol, and was waving it about, pointing it in the direction of a
bystander and his brother-in-law. From this drug store, after a few
minutes, he went to his father's store. It was a double storeroom.
His father was in one room and he entered the other and took a
seat in a chair not far from the front door. While he was sitting
there in a chair, a man in the other room asked his father where
Beach was. His father pointed him out to the man and said: 'There
he sits. I have done all I can for him and I cannot go about him or
have anything to do with him.' A few minutes later his father said
to another man who was in the room: 'I don't know what to do with
Beach. He has got to be a perfect vagabond, and he is destroying
my business, and if Dr. Hogg let's him stay there he will ruin his
business.' After saying this to the man the father walked in the
direction of where the defendant was sitting. There were a number
of persons in the store. As his father approached, the defendant
got out of his chair and walked around behind a spool case that was
setting on the end of the counter. No words were spoken. The first
sound that anybody heard was the report of a pistol. His father was
then about three feet from him. A struggle ensued between them,
during which the pistol was shot four times more, all five of the
shots taking effect in the father. Persons in the store ran up,
and when they got to them the father had the son down and had the
pistol, which he handed to one of them, saying: 'He has shot me all
to pieces.' The father died in a few minutes.
"The proof for the son was in substance that the father came up
to him, struck him in the face, and began choking him. When he
felt his eyes bulging out, he drew his pistol and shot him, and
his father continuing to choke him, he fired the other four shots
in the struggle; the last two being fired from the floor. The
proof for the defendant also showed that the father was drinking.
Taking all the evidence, we think it reasonably clear that the
father was unarmed and that he was shot by the son while he was
approaching him, and before he had touched him. Two witnesses who
were on the outside of the store, were looking through the windows,
and their testimony, as well as the testimony of persons in the
store, confirms this conclusion. We think it also reasonably clear
that the son was maudlin drunk, and but for this the unfortunate
homicide would not have occurred. He showed that he was under the
impression that his father had left the store, and that he went
there to meet an uncle, but expecting no difficulty. He also showed
that about a week before his father had beat him unmercifully with
a ramrod, that previous to this he had whipped him with a rope, and
on the last occasion had struck him in the mouth with his fist,
and got upon him on the floor and churned his head against the
floor; that he had taken his pistol from him, and had threatened
to shoot him with it and had been prevented from doing this by the
interference of bystanders, and that he had then declared he would
kill him. There was also evidence that the son had said that the
old man had beaten him up, but that he would never get the chance
to do it again. Also that he had declared when his father had taken
the pistol from him when drunk, that every time he got drunk and
was having a good time, they had to do something to him, and that
he aimed to kill his father and certain other persons whom he named.
"The defendant offered to prove by his grandmother and others that
his father had taught him to carry a weapon, encouraged him to
drink whiskey, and had caused him to associate with disreputable
men, thus rearing him in a manner calculated to bring about the
result which followed."
The lower court refused to permit this testimony and the Court of
Appeals affirmed the ruling in this as in practically all other
respects.
To the opinion of the court Judges Barker and Nunn dissented. Certain
excerpts of Judge Barker's opinion are of prime importance here and
corroborate what has been said concerning Judge Hargis in even stronger
language than we have employed.