Gibson v. State

• Citation: 8 So. 98,89 Ala. 121
• Parties: GIBSON ET AL. v. STATE.
• Decision Date: 27 June 1890
• Court: Supreme Court of Alabama

8 So. 98

89 Ala. 121

GIBSON ET AL. v. STATE.

Supreme Court of Alabama

June 27, 1890

Appeal from circuit court Crenshaw county; JOHN P. HUBBARD, Judge.

The defendants in this case, Ben and Sam Gibson, were jointly indicted for the murder of John Smith, by shooting him with a pistol, or by cutting him with a knife; were jointly tried and each convicted of murder in the second degree. The evidence adduced on the trial, as is shown by the bill of exceptions, showed that the difficulty between the parties occurred one Sunday afternoon in May, 1889, near a country school-house, where singing exercises were usually held at that time, which the deceased was in the habit of attending but the defendants were not; that they accosted him as he came up from a spring, near by, and Ben Gibson asked him why "he had gone into the field and cursed their old father:" that the deceased denied the accusation, and backed off from them 10 or more steps, when Ben Gibson knocked his hat off; and that in the difficulty which immediately ensued between them the deceased received three cuts from a knife, and was fatally shot in the neck with a pistol which was in the hands of Ben Gibson. It was shown that the deceased drew his knife after his hat was knocked off, and that Sam Gibson had his open knife in his hand as he approached deceased several steps behind his brother, Ben. Among the parts of the charge excepted to, were the following: "(1) Although you should believe the defendants' character good, you cannot consider that good character to support or sustain the testimony given by them but can consider that testimony only the same as if there was no evidence as to their character. (2) When life is taken by the direct use of a deadly weapon, the law presumes that the killing was malicious, and therefore murder, and casts on the defendants the onus or burden of rebutting it unless the evidence establishing the killing also shows circumstances of justification, excuse, or mitigation, which overturn the presumption. (3) If it appears beyond all reasonable doubt that the deceased came to his death in this county, before the finding of this indictment, by Ben Gibson intentionally and purposely shooting him with a pistol, and the pistol was a deadly weapon, and the other evidence in the case does not justify, mitigate or excuse the killing, it would be murder. (4) The defendants must have been free from fault in bringing on the difficulty,-that is, must not do or say anything for the purpose of provoking the difficulty, nor be disregardful of the consequences in this respect of any wrongful word or act done by them. (5) If you find that there was a difficulty between the deceased and the defendants' father in his field, that cannot in any degree or manner justify, excuse, or palliate the bringing on of the difficulty by the defendants if you find that they, or either of them, did provoke or bring on the difficulty in which the killing was done. (6) If Ben Gibson sought the difficulty with Smith for the purpose of chastising or beating him on account of what was alleged to have occurred between his father and Smith, and in pursuance of that purpose armed himself with a pistol to be used in the event it became necessary, and did use it, and killed Smith with it in pursuance of that purpose, then this would be murder, although it was necessary to use it in order to save his own life, or his body from great bodily harm. (7) If the defendants went to the school-house by design, or for the purpose of raising a difficulty with Smith, and to beat him, or if they did not go for and with such intent and purpose but formed such intent and purpose after they got to the school-house, and went after Smith for that a purpose, this would constitute Sam Gibson a party to the killing, and render him as responsible for it as Ben Gibson. (8) If Sam Gibson was present at the difficulty, without any preconcert, and without any common or illegal purpose, and one of them did the deed of violence, and the other was present, aiding, abetting, encouraging, or giving countenance to the unlawful act, or ready to lend assistance if it should become necessary, then Sam Gibson would be as much a party to the killing as Ben Gibson, and they would stand in the same category. (9) If Sam Gibson was present at the time of the killing, aiding, abetting, or encouraging Ben in the killing, this would constitute Sam a party to the killing the same as Ben."

Gamble & Bricken and Parks & Parks, for appellant.

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

SOMERVILLE J.

1. It was no ground upon which to quash the venire of special jurors summoned for the trial of the defendants, that one of those named on the list was a minor under 21 years of age; that another was a female instead of a male; that another had been dead for more than a year; that another was a non-resident of the county, or that there was a mistake in the name of still another. These errors made it the duty of the court to direct the names of such disqualified persons to be discarded, and others to be summoned to supply their places, unless, in the opinion of the court, the ends of justice required otherwise. Code 1886, § 4322; Roberts v. State, 68 Ala. 515; Fields v. State, 52 Ala. 348; Jackson v. State, 76 Ala. 26.

2. Under the act approved February 28, 1889, (Acts 1888-89, pp. 77-79,) a single defendant who is on trial alone for a capital offense is entitled to 21 peremptory challenges. It is further declared as follows, in section 2 of the same law: "When two or more defendants are on trial jointly for a capital offense or other felony, each defendant shall be entitled to one-half of the peremptory challenges allowed by this act." In this case one of the defendants was allowed 11 peremptory challenges, and the other 10. This was a compliance with the statute as nearly as was practicable, the personality of jurors not being capable of enumeration by vulgar fractions.

3. The defendants were permitted to prove their good character for peace in the neighborhood in which they resided, which was clearly relevant to the issues arising in an indictment for murder. There was no effort made by the state to assail their character for truth and veracity, although they testified as witnesses in their own behalf. The court properly ruled that the evidence introduced as to good character for peace and quiet could not be looked to for the purpose of sustaining the credibility of the parties as witnesses. Morgan v. State, 88 Ala. 223, 6 South. Rep. 761.

4. The law of self-defense was clearly and accurately stated to the jury in the general charge of the court, and in terms substantially enunciated in the past decisions of this court. Storey v. State, 71 Ala. 329; De Arman v. State Id. 351. This charge must be construed as a whole in connection with the evidence, and not...