Anderson v. State

• Decision Date: 08 April 1909
• Parties: ANDERSON v. STATE.
• Court: Alabama Supreme Court

49 So. 460

160 Ala. 79

ANDERSON v. STATE.

Supreme Court of Alabama

April 8, 1909

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Fancy Anderson was convicted of murder, and he appeals. Affirmed.

The following charges were refused to the defendant: "(2) If the jury believe from the evidence beyond a reasonable doubt that defendant unlawfully killed Enos Johnson with malice but without deliberation or premeditation, they will find him guilty of murder in the second degree. Gentlemen of the jury I charge you that there is no evidence in this case of a conspiracy to kill Enos Johnson, and you do not have a right to find the defendant guilty on the theory that defendant conspired with Jim Turner and Lottie Turner to kill Enos Johnson. (3) Unless the jury believe beyond a reasonable doubt and to a moral certainty that Jim Turner, Lottie Turner, and defendant conspired to take the life of Enos Johnson, they cannot convict the defendant of murder in any degree, unless they are satisfied beyond a reasonable doubt and to a moral certainty that defendant inflicted a wound that would, in itself, produce death. (4) After 12 o'clock to-night no verdict can be lawfully returned by this jury. (5) Each juror is entitled to his own verdict, to be made up from his own judgment of the evidence and the law given him by the court, and he is not required to return a verdict contrary to such judgment. (6) Gentlemen of the jury the defendant had the right to act on appearances; and if the jury find, from the evidence, that at the time Fancy Anderson fired at Enos Johnson he reasonably believed that Enos Johnson was about to kill him or do him great bodily harm and the defendant fired to prevent such injury to his person, then the jury should find the defendant not guilty. (7) Gentlemen of the jury, I charge you that there is no evidence of conspiracy on the part of the defendant and Jim and Lottie Turner to kill Enos Johnson."

The bill of exceptions shows that, when the jury was retiring, the defendant requested and moved the court that the showings for the absent witnesses, which had been read to the jury, be given to the jury and taken with them to their room, which motion the court refused.

Mitchell & Hughston, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

No duty rests upon a trial court to give a charge which asserts that there is no evidence of a specified fact...