Anderson v. State

• Decision Date: 16 January 1923
• Docket Number: 6 Div. 72.
• Citation: 19 Ala.App. 120,96 So. 634
• Parties: ANDERSON v. STATE.
• Court: Alabama Court of Appeals

96 So. 634

19 Ala.App. 120

ANDERSON v. STATE.

6 Div. 72.

Court of Appeals of Alabama

January 16, 1923

Rehearing Denied Feb. 6, 1923.

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Lonnie Anderson was convicted of murder in the second degree, and he appeals. Affirmed.

Frank S. White & Sons and E. C. Crow, all of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for the offense of murder in the second degree, defendant appeals.

The contention of the state was that this defendant killed one John Dawson, alias Dorsey, by shooting him with a pistol; and that the killing was a cruel unprovoked murder. It was contended by state that the deceased, who was absolutely unarmed, was returning, with others, from his work in the mines and was intercepted by the defendant and others, all of whom were strikers; that, notwithstanding the deceased did not say or do anything to the defendant, the defendant approached him and called him "a God damn scab" and said "we are going to win this thing if we have to win it in blood;" whereupon the deceased ran away from the defendant and while so running was shot in the back by the defendant. In order to sustain this contention, the state introduced two eyewitnesses to the whole transaction, members of the party of laborers with deceased at the time of the killing; and the testimony of these witnesses tends to sustain the insistence of the state as above stated. Both of the witnesses positively identify the defendant as being the man who fired the shot that killed Dawson or Dorsey, the deceased named in the indictment.

In refutation of the charge, and of the testimony adduced by the state, the defendant set up an alibi, and by his own testimony and that of several other witnesses said he was not present at the time and place of the fatal shooting of deceased, but was at his home, which was about three-fourths of a mile away at the very time of the shooting.

A material conflict in the testimony is thus presented, and the several affirmative charges requested by defendant were for that reason properly refused. The rule has been often announced that the general charge should never be given, when there is any evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it.

There were but few exceptions reserved to the rulings of the court upon the testimony. Each of these exceptions have been examined and are free from any error injuriously affecting the substantial rights of the defendant.

Special charges were refused to defendant, and the able counsel representing appellant in this court strenuously insist that the court erred in refusing each of these charges. But we do not so conclude. As before stated, the refusal of the affirmative charge to defendant, under the evidence in this case, was not error. This disposes of refused charges 1, 6 9, each of which was the affirmative charge.

Refused charges 2, 3, and 5 were fully covered by given charges 19, 20, and 21; hence the refusal of said charges was without error.

Refused charge 4 is elliptical, as it appears in the record, and was thus properly refused.

Refused charge 7 is identical with refused charge 9 in the case of Adams v. State, 133 Ala. 166, 31 So. 851. In that case the majority of the Supreme Court held this exact charge to be faulty in that it is misleading in its tendencies. However, in the instant case, the proposition of law involved in this charge was fairly and substantially covered by the oral charge of the court and...