Lewis v. State

Decision Date08 June 1892
Citation96 Ala. 6,11 So. 259
PartiesLEWIS v. STATE.
CourtAlabama Supreme Court

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Andrew Lewis was indicted for the murder of Henry Lovelace, and was convicted of manslaughter in the first degree, and appeals. Reversed.

The evidence for the state tended to show that defendant, who was in the employ of A. S. Lovelace, the father of the deceased was riding up one of the streets in Montgomery in a wagon with the deceased and another boy; that defendant got out of the wagon to talk to someone, and told the other boy, Houston Johnson, to drive on, and he would catch up with him; that after the wagon had gone some distance defendant called to said Houston Johnston to stop, which he did; and that just as defendant was nearly up to the wagon Henry Lovelace snatched the lines from Houston Johnston, and drove on. Defendant tried to catch up with the wagon, and called to Henry to stop, and, upon his refusing to do so, he picked up a quarter of a brick, threw it at Henry Lovelace, and the brick struck the boy on the ear, from the effects of which he died in about a week afterwards. The state proved the flight of defendant, and his subsequent arrest. The testimony for defendant tended to show that upon Henry Lovelace driving off the wagon, as is stated above, he picked up a quarter of a brick, and pitched it at the wagon, and that defendant said he did not intend to hit Henry; and upon Henry getting out of the wagon, and walking home, he told Houston to drive on that he would walk on with Henry, and said to Henry "Hush, Henry, don't cry; I did not intend to hurt you;" and that defendant told Henry's mother, when asked by her what was the matter with the boy, that he had hit him with a brick, but that he did not intend to do so. The testimony further tended to show that, upon his being dismissed by the mother of the boy, he stayed with one Henry Gilmer, in Montgomery, until a few days after the boy's death; and when he heard that A. S. Lovelace, the boy's father, was hunting for him, he left, and went to Bullock county, and that when Lovelace came there after him he fled and did not come back for some time. Defendant then asked one of the witnesses, who testified to Lovelace going after defendant, and as to defendant's flight, "if the defendant seemed afraid of Lovelace." This question was objected to by the solicitor, the court sustained the objection, and the defendant excepted. While defendant was on the stand as a witness in his own behalf, he was asked by his counsel the following question: "What was your intention when you pitched that piece of brick at the wagon?" The solicitor objected to the question, the court sustained the objection, and defendant excepted. Defendant testified that he was afraid of Lovelace, and left Montgomery because he heard that Lovelace was hunting for him, and had threatened to kill him. Upon the introduction of all the evidence, the court charged the jury of its own motion, among other things, as follows: "If the act was calculated to take life, the killing was manslaughter." To this part of the charge defendant excepted. The bill of exceptions then recites: "The defendant asked the court to charge the jury on the hypothesis that the killing was accidental;" and the court, in reply to defendant's request, stated "that there was no evidence of such character; to which remark of the court the defendant then and there duly excepted." The bill of exceptions then continues: "When the court had finished charging the jury, the defendant then and there excepted to the general charge; for the reason that, while the court instructed the jury upon the hypothesis that the testimony of the said witness might be true, the court did not instruct the jury upon the hypothesis that the testimony of the defendant's witness might be true." Defendant asked, among others, the following written charges, and separately excepted to the court's refusal to give each of these charges: (1) "The fact that the defendant is charged by the grand jury with the commission of this crime is no evidence of his guilt; the finding of the indictment only gives permission to this court to inquire into his guilt; and, unless the evidence given from the stand satisfies the minds of the jury to a moral certainty that the defendant committed this crime intending to kill, the jury must acquit him." (6) "It is the duty of the jury to give the defendant the benefit of every reasonable doubt which may arise in the consideration of the evidence in this case; and if, after a fair and full consideration of this evidence, the minds of the jury are left in a state of doubt and uncertainty as to whether the defendant intended to kill the deceased, or whether the killing was accidental, then the jury should give the defendant the benefit of such reasonable doubt, and acquit him." (22) "If the jury are not satisfied beyond a reasonable doubt that, when the defendant threw the piece of brick, he threw it with malice, and intended to kill Henry Lovelace, they must acquit him of murder." (23) "If the jury are not satisfied beyond a reasonable doubt that, when the defendant threw the piece of brick, he intended to kill Henry Lovelace, or that the act was one from which death or great bodily harm would ordinarily, or in the usual course of events, follow, they must acquit the defendant of manslaughter in the first degree." (26) "The law in no case requires the greatest care that can be used; it only requires a reasonable precaution, such as is usually and ordinarily taken in the like cases,-which has been by long experience found to answer the ends; for such conduct shows that the accused is regardful of social duty, and is free from all manner of guilt." There were other charges asked for defendant, and given by the court, and, after they had been given, the court, at the request of the solicitor in writing, gave to the jury several charges explaining the charges given by the court at the request of defendant; and to the giving of these explanatory charges defendant separately excepted.

J. T Ellison, for appellant.

Wm. L. Martin, Atty Gen., for the State.

MCCLELLAN J.

The state proved the flight of the defendant as tending to establish guilt. Defendant sought to rebut the inference afforded by the fact of flight by showing that flight was due to defendant's fears that Lovelace, the father of the deceased, would...

To continue reading

Request your trial
50 cases
  • Evans v. State
    • United States
    • Court of Special Appeals of Maryland
    • November 25, 1975
    ...hypothesis.' 40 Am.Jur.2d, Homicide, § 514, 'Defenses; Matters of Justification, Excuse, or Mitigation; Generally,' p. 766; Lewis v. State, 96 Ala. 6, 11 So. 259. 'Obviously, requested instructions on the law of self-defense should be refused if there is no evidence whatever tending to show......
  • Brownlee v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 28, 1988
    ...aff'd, 500 So.2d 68 (Ala.1986). "A killing is not accidental when the act causing death is done intentionally. Lewis v. State, 96 Ala. 6, 10, 11 So. 259 (1891). Any contention that the death was accidental 'ignores the nature of the enterprise that the defendant ... [was] engaged in.' Sande......
  • Oryang v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 25, 1994
    ...364 So.2d 424, 426 (Ala.Cr.App.1978). " 'A killing is not accidental when the act causing death is done intentionally. Lewis v. State, 96 Ala. 6, 10, 11 So. 259 (1891). Any contention that the death was accidental "ignores the nature of the enterprise that the defendant ... [was] engaged in......
  • Gautney v. State
    • United States
    • Alabama Supreme Court
    • March 27, 1969
    ...No. 4 was properly refused. Bailey v. State, 133 Ala. 155, 32 So. 57; Fowler v. State, 161 Ala. 1, 49 So. 788; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am.St.Rep. 75; Lawson v. State, 155 Ala. 44, 46 So. 259; 29 C.J. p. 1295, § 69, p. 1119, § 106, p. 1128, § 116.' (Emphasis supplied) 211 A......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT