Allen v. State

• Decision Date: 16 June 1896
• Parties: ALLEN v. STATE.
• Court: Alabama Supreme Court

20 So. 490

111 Ala. 80

ALLEN v. STATE.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Clay county; Geo. E. Brewer, Judge.

James Allen was indicted, tried, and convicted of murder in the second degree, for killing one William Lankford, and sentenced to the penitentiary for 10 years, and appeals. Affirmed.

It was shown by the evidence that defendant killed Lankford in Clay county, on the 21st day of February, 1894, at Motley's store, by cutting him with a knife, and that the wound inflicted upon deceased was a stab in the right side of the neck about an inch deep, which penetrated the carotid artery thus causing death. Briefly stated, the testimony on the part of the state tended to establish the guilt of the defendant or that the defendant cut said Lankford under provocation of gross insults, and without any overt act on Lankford's part, while the testimony on the part of the defendant tended to show a case of self-defense. The uncontradicted evidence showed that Lankford, Kilgore, Sides, and others were at Motley's store when defendant came in, about 3 o'clock in the afternoon. It further shows that immediately upon the entrance of defendant, Lankford, without cause, cursed and abused him, and applied to him foul epithets, accusing him of having given away or reported an illicit distillery to the revenue officers, to such an extent that his friend Monkers carried him out of the store, and down to Truett's store, about 40 yards away, for the evident purpose of preventing him from assaulting the defendant. During such time, defendant did or said nothing to Lankford that was in the least insulting. It was further shown that deceased, immediately after this, exchanged knives with one Tidwell while at Truett's store, getting a much larger knife; that, within 15 or 20 minutes after he was carried out of Motley's store, said Lankford returned the defendant having meanwhile taken a seat on the counter on the north side of the store, and near Kilgore, who was sitting immediately on his left. The testimony on the part of the state tended to show that, when Lankford returned to Motley's store, he entered the front door, and walked down in front of the defendant, and, within a few feet of him, began cursing him anew; he then lit his pipe, and took a seat on the counter by Kilgore, and immediately on his left that defendant, Kilgore, and Lankford were all seated on such counter, Kilgore being between them, and Lankford being on Kilgore's left. The state's testimony also tended to show that, when Lankford entered the store, he did not have his knife in his hand, and did not have it in his hand when he took his seat on the counter; that, immediately after he sat down on the counter, he again cursed defendant, and applied to him a foul epithet; and defendant said to him he would not take, or could not take, that any more, and thereupon said Lankford again used the same language to defendant, and defendant jumped off the counter, took three steps towards Lankford, caught him by the forehead with his right hand, and stabbed him on the right side of his neck with his left hand, striking him but one blow, and then turned and ran or walked rapidly to the side door, Lankford following him to the door. Several of the witnesses testified that they saw Lankford's knife open in his right hand as he followed the defendant to the door, and one state's witness testified that he drew his knife after he was cut. The testimony for the defendant tended to prove that as Lankford left Truett's store, which is about 40 yards from Motley's, he had his knife in his hand, and said to Wyley Stone, with an oath, that he was not going to be run over, and, as he entered the door or got on the veranda of such store, he had his knife open in his right hand. Defendant testified that, as Lankford entered the door, he had his knife open in his hand, and walked down in front of where he (defendant) was sitting, and within a few feet of him, and cursed him, applying a most opprobrious epithet that Lankford then took his seat on the counter, and again cursed him, using the same epithet; that he (the defendant) said to him, "Mr. Lankford, that is the third time you have called me that, and I do not want you to do it any more;" that Lankford repeated it, and said, "If you do not like it, you can help yourself," and during such time had his knife open in his right hand, and as he began to repeat it, or just before, defendant took his knife out of his pocket; that, as Lankford repeated such language, he (Lankford) began to get off of the counter, and was partially off of the counter, with his face turned in the direction of the defendant, with his knife open in his right hand, and drawn back in a striking attitude; and while in this position, having got his left foot on the floor, before defendant got off of the counter, and while in the act of getting off the counter, defendant sprang off of the counter, and as he struck the floor, he and Lankford being within about two feet of each other, and in striking distance, he struck him one blow with his knife with his left hand, and then ran to the side door, Lankford pursuing him with his knife open, and saying, with an oath, "You had better get!" The testimony further showed that Lankford pursued the defendant to the side door, when Walker stopped him, and he then walked towards the front of the store, dropping his knife in the doorway, and died in five or ten minutes. The testimony further tended to show that the defendant was a man of good character, and the deceased was a violent, dangerous, and turbulent man, and especially so when drinking, and that he was drinking on the day he was killed; that, at such time, it was generally rumored in the community that defendant had reported the Evans boys for distilling, and that the revenue officers had broken up their still; and that, about two weeks before the killing, the deceased had told one Fargarson that defendant had reported the Evans boys to the revenue officers, and that somebody ought to kill him, and that he would kill him. On the examination of S. L. Walker, as a witness for the state, he testified that he was clerking in Motley's store at the time of the killing of Lankford by the defendant, and was present during the quarrel. After he had testified to the circumstances of the killing, the solicitor then asked the witness: "If he said anything to the defendant after Lankford had been taken out, and while Lankford was absent, and what the defendant said in reply." The defendant objected to this question, on the ground that it called for immaterial and irrelevant evidence. The court overruled this objection, and the defendant duly excepted. In answer to the question, the witness said that, after Lankford had gone out of the store, he went to the defendant, and said to him that, "if I was him, I would go home; and Allen said to me that he would not run from him." The defendant moved to exclude this answer of the witness from the jury, on the ground that it was irrelevant and immaterial evidence, and duly excepted to the court's overruling his motion. On the examination of one George Sides, as a witness for the state, and after he had testified to the circumstances of the killing, the solicitor asked him the following question: "What, if anything, he said to the defendant, and what the defendant said in reply after Monkers asked Lankford out." The defendant objected to this question, on the ground that it called for incompetent, immaterial, and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. The witness answered that, a few minutes before the difficulty, he told the defendant he had better get away from there, and had better go home, and the defendant replied: "I can't take everything." The defendant moved to exclude this answer from the evidence, on the ground that it was imcompetent, irrelevant, and immaterial testimony, and duly excepted to the court's overruling his motion. Upon the examination of Wyley Stone as a witness, he testified that he was at Truett's store when Lankford came there from Motley's store. The defendant asked the witness: "If about the time Lankford started back to Motley's store, ten minutes before the difficulty, Ben Tidwell did not say in Lankford's presence, at Truett's store, 'Look out men! Hell's going to be to pay."' Upon the objection of the state to this question, because it called for immaterial and irrelevant evidence, the court sustained the objection, and the defendant duly excepted. On the cross-examination of a witness introduced by the state in rebuttal, who, on his direct examination, had testified that Lankford's general character for peace and quiet was good, the witness testified that he had frequently seen Lankford when drunk, and, when drunk, he was a fussy, quarrelsome man. The defendant's counsel then asked said witness the following question: "If he was not related to the Evans boys, whose still was said to have been reported to the revenue officers a short time or a few weeks before the difficulty between the said Lankford and the defendant, in which Lankford was killed." The solicitor objected to the question, on the ground that it called for immaterial and irrelevant...