Parker v. State

Decision Date30 June 1909
PartiesPARKER v. STATE.
CourtAlabama Supreme Court

On Rehearing, December 16, 1909.

On Rehearing.

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

Luther Parker was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The defendant entered a motion to quash the venire upon the grounds "(1) that a copy of the petit jurors drawn for the second week of this term of this court was not served upon the defendant as required by order of the court; (2) because a copy of the list of the petit jurors drawn for the second week of this term of this court, together with a copy of the list of the special jurors drawn and ordered summoned in this case, was not served upon the defendant, or his attorneys, as required by the order of this court; (3) because on the original list of the petit jurors drawn for the second week of this term of this court there appears the name of G. C. Abbott, and the name of G. C. Abbott does not appear on the copy served upon the defendant or his attorney and because on the copy of the petit jurors drawn for the second week of this term of this court and served upon the defendant there appears the name of G. C. Ahhatt, and the name of said G. C. Ahhatt does not appear on the original list, and there is no such man in beat 8."

The following charges were refused to the defendant:

"(1) It is not necessary that a man should be actually and really in danger of great bodily harm, or that retreat would actually and really increase his danger, in order for him to be justified in taking the life of his assailant. He has the right to act upon the reasonable appearance of same. If the circumstances are such as to justify a reasonable man in the belief that he is in great danger of bodily harm, and that he cannot retreat without adding to his peril, and he honestly believes that such is the case and he is free from fault in bringing on the difficulty then he has the right to kill his assailant in his own defense, although as a matter of fact he was in no actual danger, and retreat would not have endangered his personal safety.
"(2) If the jury believe from the evidence that the defendant is without fault in bringing on the fatal difficulty, and that at the time he inflicted the fatal wound on the deceased there existed a real or apparent danger, or a present, impending, imperious necessity to strike in order to save his own life, or to save himself from great bodily harm, and that there was no reasonable mode of escape by retreating or by avoiding the combat with safety, they must find the defendant not guilty.
"(3) The court charges the jury that the law presumes the defendant to be innocent of the commission of the offense charged in the indictment, and this presumption continues to grow in favor of the defendant until the evidence convinces the jury beyond a reasonable doubt of his guilt; and you cannot find the defendant guilty of the offense charged in the indictment until the evidence in this case satisfies you beyond all reasonable doubt of his guilt; and so long as you, or any of you, have a reasonable doubt as to the existence of any of the elements necessary to constitute the offense charged in the indictment, you should find the defendant not guilty.
"(4) If the jury believe from the evidence that at the time the defendant inflicted the fatal blow on the deceased that he was not actuated by malice, but that he acted from a suddenly aroused, adequate provocation, or that he acted in self-defense, you must acquit him.
"(5) The court charges the jury that if they believe from the evidence that the dying declaration introduced in evidence in this case was written by J. B. Brown, an attorney who is prosecuting in this case for the state, and that he would ask the deceased questions, and then have deceased answer them, and write down the answers, then that it is their duty to scrutinize carefully the said alleged dying declarations.
"(6) Before the jury can convict a defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty.
"(7) If the jury believe from the evidence that at the time of the killing the defendant entertained the honest belief in the existence of the present necessity on his part to kill, in order to save his own life or to prevent the infliction of grievous bodily harm, and the circumstances at the time are such as to impress the mind of a reasonable man under the same state of facts with the belief of such imminent peril and urgent necessity, and if they further believe from the evidence that the defendant did not bring on the difficulty or provoke it, then they must find the defendant not guilty.
"(8) If the jury have a reasonable doubt whether the circumstances were such as to impress the mind of a reasonable man that he was in great danger of great bodily harm at the time of the killing, they must acquit him, giving the prisoner the benefit of that doubt.
"(9) The court charges the jury that if, at the time the fatal shot was fired, the defendant acted upon the honest belief that he was in danger of losing his life or of suffering great bodily harm at the hands of the deceased, and that the defendant did not provoke or bring on the difficulty, then the defendant should be found not guilty.

"(10) If the defendant shot under the bona fide belief that his life was in danger, and had under all the circumstances reasonable cause to believe that he was in imminent danger at the moment the shot was fired, it would be immaterial whether there was such actual danger or not.

"(11) Unless the evidence against the defendant should be such as to exclude to a moral certainty every hypothesis but that of the guilt of the accused, the jury must acquit.

"(12) The court charges the jury that the law is as much vindicated by the acquittal of an innocent person as by the conviction of a guilty one.

"(13) The court charges the jury that, if they are reasonably satisfied from the evidence that the alleged dying statement of the deceased was not made voluntarily and without any coercion on the part of any person at the time of making the same, it should not be given any weight by the jury in reaching their verdict.

"(14) The court charges the jury that they may take into their consideration the testimony of the witnesses as to statements made by the deceased, John Johnson, tending to contradict the dying declarations, in determining what weight the jury will give to the paper or statement introduced in evidence as the dying declaration of the deceased."

The reporter finds no charge marked 11 1/2.

F. E. St. John and George H. Parker, for appellant.

Alexander M. Garber, Atty. Gen., and Brown & Kyle, for the State.

SIMPSON J.

There was no error in...

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27 cases
  • Ledbetter v. State
    • United States
    • Alabama Court of Appeals
    • June 15, 1948
    ... ... The ... following authorities sustain our view that there was no ... error in allowing the introduction of the declaration against ... the grounds stated in the objections. Fowler v ... State, 236 Ala. 87, 181 So. 266; Carmichael v ... State, 197 Ala. 185, 72 So. 405; Parker v ... State, 165 Ala. 1, 51 So. 260; Walker v. State, ... 139 Ala. 56, 35 So. 1011; Shikles v. State, 31 ... Ala.App. 423, 18 So.2d 412; Gettings v. State, 32 ... Ala.App. 644, 29 So.2d 677; Collins v. State, 27 ... Ala.App. 499, 176 So. 219; Parker v. State, 24 ... Ala.App. 72, 130 So. 525 ... ...
  • Thomas v. State, 6 Div. 177
    • United States
    • Alabama Supreme Court
    • June 14, 1951
    ...statement, in view of the fact that the party recognized the fact that he should soon appear in the presence of his Maker.' Parker v. State, 165 Ala. 1, 8, 51 So. 260, a fact essential to the admissibility of such statement as a dying declaration, to bring it within the exceptions to the ru......
  • Ray v. State, 2 Div. 224.
    • United States
    • Alabama Supreme Court
    • November 21, 1946
    ... ... conclusion or opinion of the witness. Barlew v ... State, 5 Ala.App. 290, 57 So. 601; Wigerfall v ... State, 17 Ala.App. 145, 82 So. 635; Valentine v ... State, 19 Ala.App. 510, 98 So. 483; Hill v ... State, 137 Ala. 66, 34 So. 406; Bettis v ... State, 160 Ala. 3, 49 So. 781; Parker v. State, ... 165 Ala. 1, 51 So. 260 ... James ... Ray testified in behalf of his brother, the defendant. On ... cross-examination the solicitor asked him the following ... question: 'And you are under indictment--.' Counsel ... for appellant objected before the question had been ... ...
  • Brooks v. State
    • United States
    • Alabama Court of Appeals
    • March 19, 1946
    ...he says in regard to approaching dissolution. Lewis v. State, 231 Ala. 211, 164 So. 92; Parker v. State, 165 Ala. 1, 8, 51 So. 260, 262. The Parker case approvingly quotes Professor Wigmore on the 'No rule can be laid down. The circumstances of each case will show whether the requisite cons......
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