Barnes v. State

• Decision Date: 28 June 1902
• Citation: 134 Ala. 36,32 So. 670
• Parties: BARNES v. STATE.
• Court: Alabama Supreme Court

32 So. 670

134 Ala. 36

BARNES v. STATE.

Supreme Court of Alabama

June 28, 1902

Appeal from city court of Montgomery; William H. Thomas, Judge.

Jim Barnes was convicted of second degree manslaughter, and appeals. Reversed.

Before entering upon the trial, the defendant moved the court to quash the venire, upon the ground that the return of the sheriff showed that H. E. Battle, who was one of the special jurors drawn, and whose name was on the list served on the defendant as a juror for the trial of his case, was not found, and that the return of the sheriff did not show the reason for not finding said juror, as required by the special jury law for Montgomery county. The facts, as set out in the motion, were admitted. The court overruled the motion to quash. To this ruling of the court the defendant duly excepted. A similar motion was made by the defendant because J. O. Sharpe, who was drawn as a special juror, and whose name was on the list served on the defendant, was not found and the sheriff failed to enter upon his return the reason for his not finding and summoning said Sharpe. The court overruled this motion, and the defendant duly excepted. The witness for the state tended to show that the defendant and Cora Gibson and one Sam Springer and Elsie Duncan were walking down the public road together, laughing and talking that defendant, Jim Barnes, and Cora Gibson were talking to one another, when the defendant raised his pistol, and pointing it towards said Cora, the pistol was fired inflicting the wound from which Cora Gibson died; that, after firing the pistol, the defendant leaned over the woman, and lifting her head, called her by name several times; that he then left the scene of the shooting, and ran off. There was other evidence tending to show that the defendant and Cora Gibson were sweethearts, and were engaged to be married, and that there was no fuss or quarrel between them at the time of the shooting. There was no proof of the venue of the offense. The defendant, as a witness in his own behalf, testified that while he was walking along with said Cora, she asked him to let her shoot his pistol, and that, upon his replying that women should not shoot pistols, she tried to take the pistol from him, and in the effort to prevent her, the pistol was accidentally fired, but that there was no fuss or quarrel between Cora and himself, and that they were engaged to be married, and that he did not point the pistol at her. The defendant also introduced several witnesses, who testified to the defendant's good character. During the examination of Jack Allen as a witness for the state, he testified that, a few days previous to the killing, he overtook Sam Springer and the defendant in the public road; that when the witness was within 15 or 20 steps of them, he heard the defendant say to Springer that Cora had told him that her mother objected to his (the defendant's) coming to her house, and that thereafter she (Cora) did not want him to come to see her any more, and if Cora did not do what he (the defendant) wanted her to do, he would kill her. The defendant objected to this portion of the testimony of the witness Allen, and moved the court to exclude the same, upon the ground that it was hearsay, incompetent, and irrelevant. The court overruled the objection and motion, and to this ruling the defendant duly excepted. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked "(1) The court charges the jury that, if you believe the evidence in this case, you will find the defendant not guilty. (2) The court charges the jury that, unless the evidence convinces you beyond a reasonable doubt that the defendant intended to unlawfully point the pistol at the deceased, you cannot convict the defendant. If you should believe from the evidence that the death of deceased was unintentional or accidental, you should find defendant not guilty." "(X) The fact, if it be a fact, that the defendant is a man of good character may generate a reasonable doubt of his guilt in the minds of the jury." "(S) The court charges the jury, if you believe...