Bankhead v. State

• Citation: 124 Ala. 14,26 So. 979
• Parties: BANKHEAD v. STATE.
• Decision Date: 19 December 1899
• Court: Supreme Court of Alabama

26 So. 979

124 Ala. 14

BANKHEAD v. STATE.

Supreme Court of Alabama

December 19, 1899

Appeal from circuit court, Lamar county; S. H. Spratt, Judge.

Marion Bankhead was convicted of murder in the second degree, and appeals. Reversed.

The appellant in this case was indicted and tried for the murder of one Doug Wells, and was convicted of murder in the second degree, and sentenced to the penitentiary for 15 years. The evidence pertaining to the waiver of capital punishment by the solicitor is shown in the opinion. The record does not show that there was a special venire drawn, in accordance with the statute, for the trial of the defendant, and the list of the jurors so drawn served upon the defendant. The evidence for the state tended to show: That the defendant, in company with one Dewitt Fleming, went to the house of the deceased on the Sunday night of the killing, and that the defendant called the deceased out to his gate. That after deceased came to the gate the defendant asked him, "Who has told you tales you have been telling on me?" And that thereupon the defendant and the deceased got into a dispute about certain reports that had been circulated concerning the defendant. That upon the defendant denouncing the report as a G_____d d_____d lie, the deceased told the defendant not to curse there at his gate, and upon his continuing to do so he applied to the defendant a very opprobrious epithet. Thereupon the defendant put his hand in his pocket, and the deceased and the defendant both started towards each other, and they clinched. That, a few minutes after they clinched, the defendant broke loose and ran. That the deceased tried to follow him, but fell. That there were several knife wounds inflicted upon the deceased in the struggle, and that he died in a few hours after the cutting. That the deceased had no weapon, and made no effort to get any. Dewitt Fleming, as a witness for the state, testified that in the difficulty the deceased stated to the defendant just before they clinched: "You need not put your hand in your pocket. I am not afraid of anything you have in your pocket." To this statement of the witness the defendant objected upon the ground that it was illegal, irrelevant, and immaterial. The court overruled the objection, and the defendant duly excepted. It was further shown by the testimony of the state that the defendant inflicted the wounds upon the deceased with a knife while they were scuffling in the difficulty. The defendant, as a witness in his own behalf, testified that in the difficulty the deceased advanced upon him and caught him in the collar; that deceased struck him twice in the head with his knife; that he tried to get away from him, but could not, and then he cut him. The defendant also introduced several witnesses who testified that the defendant's general character in the community where he lived was good, and that his character for peace and quiet was good. He also introduced several witnesses who testified that the character of the deceased in the neighborhood in which he lived was that of an overbearing quarrelsome, and fussy man. In rebuttal, the state introduced several witnesses who testified that the general character of the deceased in the neighborhood in which he lived was good and that his character for peace and quiet was good. In its general charge to the jury, the court gave them, among others, the following instruction: "Whenever one man intentionally kills another with a deadly weapon, the law presumes that it was maliciously done,-that it was done with formed design to take life,-unless the evidence which proves the killing shows the excuse of extenuation." The defendant separately and severally excepted to each of said portions of the court's general charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) I charge you, gentlemen of the jury, it is the settled law of the state of Alabama that in all criminal prosecutions the defendant may give evidence of his previous good character not only where a doubt exists on the other proof, but ever to generate a doubt of defendant's guilt. (2) If the defendant has proven a good character as a man of peace, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character. (3) I charge you, gentlemen of the jury, the fact that the defendant said to the deceased that his son had told a God damned lie cannot be considered by you as evidence in arriving at the fact which was the aggressor or at fault in bringing on the fight which resulted in the death of Doug Wells."

Nesmith & Nesmith, for appellant.

Chas G. Brown, Atty. Gen., for the State.

TYSON J.

It appears from the record that on February 28, 1899, the defendant was arraigned upon the indictment, and pleaded "Not guilty." On the same day, as shown by the recitals of the judgment entry, an agreement was made that "the state, by its solicitor, W. B. Oliver, waives capital punishment in said case; said defendant, being present in open court, consenting...