McNeill v. State

• Citation: 102 Ala. 121,15 So. 352
• Parties: MCNEILL v. STATE.
• Decision Date: 11 April 1894
• Court: Supreme Court of Alabama

15 So. 352

102 Ala. 121

MCNEILL v. STATE.

Supreme Court of Alabama

April 11, 1894

Appeal from city court of Mobile; O. J. Semmes, Judge.

William McNeill was convicted of murder in the first degree, and appeals. Affirmed.

The evidence for the state, as shown by the bill of exceptions tended to show that on the morning of September 3, 1893 Catherine McNeill, the wife of defendant, was found dead in her bed in Mobile county, with a wound made by an axe on the right side of her head, just above the right ear, and that an axe was found on the bed near her body. The evidence further tended to show that the deceased went to bed about 11 o'clock on the night of the 2d of September, 1893; that there was sleeping in the same room with the deceased, but in a different bed, the niece and nephew of deceased, 14 and 12 years of age, respectively; that deceased took nothing to her room with her when she went to her room that night, except her baby and hat; that, some time before day, the niece awoke, and saw the defendant leaving the room hastily, and heard him run down the stairs leading from the room; that the niece immediately went back to sleep, and heard or saw nothing more until she was awakened in the morning. It was further shown by the evidence for the state that the deceased was washing for one Marvary, who had married defendant's sister, and that, on the evening before the killing, said Marvary and his wife came to the premises of deceased, and Marvary's wife asked deceased for one of Marvary's shirts, which had been left with her; that the deceased refused to give it to her, and a quarrel ensued, and, after the police were called, Marvary and his wife left the premises; that, after Marvary and his wife had gone some distance, they separated, his wife going home, and he going back to the room of deceased, where he knocked several times and, failing to get any response, he went away; that he met defendant a short distance from the house, and had a conversation with him about some accusations made by defendant as to Marvary's relations with defendant's wife; that Marvary denied these accusations, and, after cursing defendant, went on home, arriving about 12 o'clock, and spent the rest of the night of his home. It was also in evidence that defendant had told the chief of police, and had stated on his preliminary trial, "that he was at home on the evening on which the quarrel above referred to between Marvary and his wife took place; that he started for Spring Hill shortly after Marvary and wife left the place. He proceeded a short distance, when he became suspicious, and returned to the place where his wife was that, finding the door locked, he suspected that same one was in his wife's room, and went out on a shed adjoining the gallery, and from that position discovered Marvary and his (defendant's) wife in the act of adultery; that he went to his wife's room door, and waited until Marvary came out, when he accosted him; that, after Marvary went off, he (defendant) went into his wife's room, and accused her of infidelity; that he was attacked by his wife with an axe which had been previously concealed behind the bed; *** that he took the axe from his wife, and in a moment of passion struck her once on the head, and she fell on the bed; that he then fled, and remained in hiding a few days, and then surrendered himself at the county jail." There was also introduced by the state two witnesses, whose testimony tended to show that they passed up the steps leading to the room occupied by deceased, and along the door of the room, the night she was killed, at different times between the hours of 1 and 4 o'clock, and they did not see any one at the door. The evidence on the part of the defendant was substantially the same as what he told the chief of police which is copied above. The defendant also introduced a number of witnesses, who testified that the general reputation of the defendant for peace and quiet was good. The court, as a part of the general charge to the jury, instructed them in writing as follows: "As mitigation in this case, the defendant claims that the defendant had discovered his wife in the act of adultery at or shortly before the time of the killing. The law is that if a man discovers his wife in the act of adultery, and his passion was greatly aroused, and through this passion he strike and kill his wife, it would not be murder, but manslaughter. The law does not say, that under all circumstances, a man is not guilty of murder if he kill his wife, even if in the act of adultery at the time of the killing. The test is, does the slayer slay by reason of passion aroused or induced by revenge or malice? If a wife has lost his virtue, and continues to defile her marriage bed, and the husband knows this, and after so knowing, and after reflection, while the mind is coolly operating, kills her to avenge his wounded honor, and not by reason of passion, it would be murder, not manslaughter. Therefore, in the case at bar, gentlemen of the jury, if you should find from the evidence that the defendant caught her in the act, and, through the influence of passion, shortly thereafter killed her, this would be manslaughter; but if you...