Morris v. State

• Citation: 41 So. 274,146 Ala. 66
• Parties: MORRIS v. STATE.
• Decision Date: 28 April 1906
• Court: Supreme Court of Alabama

41 So. 274

146 Ala. 66

MORRIS v. STATE.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

"To be officially reported."

John M Morris, Sr., was convicted of manslaughter, and he appeals. Reversed and remanded.

The defendant was indicted for killing Doc Grisham by shooting him with a pistol. The evidence on the trial shows that the killing was done by a son of this defendant after the deceased had struck this defendant. The other facts necessary to a proper understanding of the opinion are fully set out therein.

The following charges were requested by the defendant and refused by the court:

Charge 7: "The burden of proof is not on the defendant to establish self-defense by a preponderance of the evidence but, if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, you must find him not guilty."

Charge 12 is fully set out in the opinion.

Charge 18: "I charge you, gentlemen of the jury, that before you can convict this defendant of having aided and abetted or aided or abetted his son, John Morris, Jr., in the killing of B. F. Grisham, you must believe from the evidence beyond a reasonable doubt that this defendant participated in the killing, or intentionally encouraged his son in said killing or was present for the purpose of aiding his son in the killing, which purpose was known to said son, John Morris Jr., at the time the latter fired the fatal shots."

Charge 20: "I charge you, gentlemen of the jury, the question as to whether or not there is a conspiracy and whether or not the defendant was a participant therein rests on circumstantial evidence and a conclusion as to whether or not there was a conspiracy and the participation therein by this defendant. The failure of the state to prove a motive or inducement therefor, if you believe it has so failed, is a circumstance that may be considered by you in connection with all the other evidence in the case."

Charge 21: "I charge you, gentlemen of the jury, that there is no evidence in this case showing a conspiracy or prearrangement on the part of this defendant and Johnnie Morris, Jr., to take the life of B. F. Grisham."

Charge 26: "I charge you, gentlemen of the jury, that if you believe from the evidence that the defendant was knocked down by B. F. Grisham, and that Johnnie Morris, Jr., ran up and shot the deceased, without knowledge of this defendant, you cannot convict the defendant, unless you further believe beyond all reasonable doubt that there was a conspiracy or prearrangement between the defendant and his son to take the life of B. F. Grisham."

Charge 29: "I charge you, gentlemen of the jury, that if you believe from the evidence that B. F. Grisham started the difficulty with this defendant by calling him off and knocking him down, and that John Morris, Jr., ran up and fired the fatal shot, without encouragement from this defendant, your verdict should be not guilty, unless you believe beyond all reasonable doubt and to a moral certainty that there was a prearrangement or a conspiracy existing between this defendant and his son, John Morris, Jr., to take the life of B. F. Grisham."

Charge 31: "If you believe from the evidence that B. F. Grisham provoked the difficulty by calling this defendant off and knocking him down, and if you believe from the evidence that John Morris, Jr., ran up and fired the fatal shot without encouragement from this defendant and without his aid and assistance, your verdict should be not guilty."

Charge 41: "Malice upon the part of John Morris, Jr., and not indulged in by the defendant, will not authorize a conviction of the defendant of the offense charged in the indictment unless the defendant, with knowledge of the malice, aided, abetted, or encouraged the killing."

Charge 42: "Unless the killing of deceased was done under such circumstances as to render John Morris, Jr., guilty of the murder, the jury cannot find the defendant guilty as charged in the indictment."

Charge 46: "No presumption is to be indulged against this defendant because he was present at the place of killing and had an altercation with the deceased just prior to the killing."

Charge 50: "Malice upon the part of John Morris, Jr., not indulged in by the defendant, will not authorize a conviction of the defendant, unless he had personal knowledge of the malice on the part of John Morris, Jr."

Charge 53: "If the evidence in this case convinces the jury that there is a probability of the defendant's innocence, then your verdict should be not guilty."

Charge 2A: "I charge you, gentlemen of the jury, that before you can find this defendant guilty you must find beyond all reasonable doubt and to a moral certainty, from all the evidence, that there was a conspiracy into which the defendant entered to kill B. F. Grisham or to commit some other unlawful act, and killing of B. F. Grisham followed from or was the natural or proximate result of such conspiracy to commit such unlawful acts, or that he aided or abetted in the killing by preconcert of action with John Morris, Jr., or that he was present and aided John Morris, Jr., in the infliction of the fatal shot, or was present for the purpose to aid, encourage, or incite John Morris, Jr., to commit the deed, which purpose was known to John Morris, Jr., and did contribute to."

Charge AA: "I charge you, gentlemen of the jury, that a son has the right to slay in defense of his father whenever that father has a right to slay in his own defense."

Charge 1B: "I charge you, gentlemen of the jury, that, if you have a reasonable doubt as to whether or not the killing was in self-defense, you should acquit the defendant in this case."

Charge 3B: "I charge you, gentlemen of the jury, that the fact that the grand jury of this county indicted this defendant for the unlawful killing of B. F. Grisham with malice aforethought cannot be considered by you as tending to show either his guilt or innocence."

Charges CC, DD, and E related to murder in the first and second degrees, and the verdict was for manslaughter.

Charge EE: "I charge you, gentlemen of the jury, that a son has the right to shoot in defense of his father, provided his father is in real or apparent imminent danger of death or grievous bodily harm, and was not at fault in bringing on the difficulty, and there was no other motive of escape from the real or apparent danger which menaced him, when there was no other means of escape save by taking the life of his father's assailant."

Charge G: "I charge you, gentlemen of the jury, before you can convict this defendant under this indictment, you must believe from the evidence beyond all reasonable doubt and to a moral certainty that this defendant was not free from fault in bringing on the difficulty with B. F. Grisham and that he actually participated in the killing of B. F. Grisham, or that he and John Morris, Jr., had a preconcert or agreed to do some act from which the death of B. F. Grisham would proximately result from the doing of such act, or that there was a community of purpose between John Morris, Jr., and this defendant to kill B. F. Grisham, or to do some act from which the death of B. F. Grisham would flow as a proximate result of doing such act, or that this defendant aided and abetted or aided or abetted John Morris, Jr., in killing B. F. Grisham."

Charge K: "I charge you, gentlemen of the jury, that whatever occurrence may have sprung out of the trouble between B. F. Grisham and this defendant, if they were mere incidents happening casually, without the knowledge, design, or expectation of the defendant, then these casual incidents do not show a conspiracy." Charge KK: "I charge you, gentlemen of the jury, that you cannot find this defendant guilty, on the theory of a conspiracy or prearrangement or preconcert, on the uncorroborated declarations or admissions or confessions of this defendant."

Charge NN: "I charge you, gentlemen of the jury, that you cannot find this defendant guilty, on the theory of a conspiracy or prearrangement or preconcert, on the uncorroborated confessions of this defendant."

Charge OO: "I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the acts of B. F. Grisham, at the time he was shot, were such as to reasonably impress upon John Morris, Jr., the reasonable belief, and John Morris, Jr., honestly entertained that belief at the time, that he was in imminent danger to his life or great bodily harm, and there was no other motive of escape, except by taking the life of B. F. Grisham, then John Morris, Jr., had the right to shoot B. F. Grisham, unless you further believe that John Morris, Jr., brought on the difficulty."

Charge X: "I charge you, gentlemen of the jury, that there is no evidence in this case that this defendant did any act or said any word at the time John Morris, Jr., killed Grisham that aided in the killing."

Charge Y: "Before you can convict the defendant, on the ground that he aided or encouraged John Morris by acts or words at the time he shot Grisham, you must believe beyond a reasonable doubt and to a moral certainty that John Morris had knowledge of such acts or words, and also knowledge of the acts or words were done or said for such purpose."

Charge XYZ: "I charge you, gentlemen of the jury, that the dangers that will excuse one for killing another need not be real or actual. It may now be known that all the appearances of danger were false, and that B. F. Grisham never intended to do the defendant any further harm, and that he did not have a pistol or other deadly weapon; yet if the jury believe from all the evidence in this case, or any part of the...