Blevins v. State

Decision Date22 July 1924
Docket Number7 Div. 973.
Citation101 So. 478,20 Ala.App. 229
PartiesBLEVINS v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Aug. 19, 1924.

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Harry Blevins was convicted of murder in the second degree, and appeals. Affirmed.

The refusal of requested instructions covered by those given held not error.

These requests for instruction were refused to defendant:

"A1. I charge you that if you believe from the evidence in this case that the killing of Arnold Scott and Beldon Little was pursuant to and was a continuation of the same assault, and done under the same impulse of the same design, it is but one act, although they may have been killed by different shots.
"A2. I charge you that if you believe from the evidence that the killing of Arnold Scott and Beldon Little was one continuous assault and one transaction then you should find your verdict for the defendant on his plea."
"L. I charge that you must believe the guilt of the defendant from the evidence beyond all reasonable doubt, to a more certainty, and to the exclusion of every hypothesis based on the innocence of the defendant. That means that the state must furnish you evidence which will exclude the theory of the defendant that the sheriff killed Little, and if after you have considered all the evidence, both for the state and the defendant, you have a doubt growing out of that testimony, which you think is reasonable, whether the sheriff killed Little or whether one of the Blevins boys killed him, then you should acquit the defendant."
"O. I charge you that if the sheriff, Scott, and Little attempted to arrest these Blevins boys without making known their business, authority, or identity, and in so doing Scott grabbled one of them, then they had a right to resist, and, being in their own home, they had a right to kill their adversaries without retreating, provided it was necessary to resist such unlawful arrest."
"7. If you believe, Andy Chitwood is interested in the result of your verdict then, gentlemen of the jury, you should look at his testimony in the light of the interest he has in your verdict."

Isbell & Scott, of Fort Payne, for appellant.

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

FOSTER J.

The appellant and his brother, Richard Blevins, were jointly indicted at the fall term, 1919, of the circuit court of De Kalb county for killing Belton Little; the indictment charging murder in the first degree. At the same term of the court an indictment was returned against the appellant and his brother for killing Arnold Scott. At the spring term, 1921, of the court the appellant was tried upon the indictment for the killing of Arnold Scott and was acquitted.

Upon arraignment on the indictment in this case the appellant filed a plea of former acquittal, averring that he was at the spring term, 1921, put upon trial for the killing of Arnold Scott and was acquitted, and that the killing of the two persons was at the same time and based upon the same facts. Issue was joined upon the plea and was submitted to a jury, which decided the issues in favor of the state. There was a conflict in the evidence. The appellant claimed that he did not shoot the deceased, but that his gun went off accidentally in a struggle with Arnold, and that the sheriff shot the deceased.

Deceased, Belton Little, who was a deputy sheriff, and another deputy, Arnold Scott, who was killed in the same difficulty, and the sheriff went to the house where appellant lived with his mother, two sisters, and Richard Blevins; the last named being jointly indicted with the appellant. The three officers went into the house and awaited the coming of the appellant and his brother, leaving the automobile in which they had approached the house in the woods several hundred yards away in charge of one York. In a short while appellant and his brother came home, and as soon as they entered the house shooting commenced, the two deputies were killed, the sheriff was wounded, as were the appellant and his brother. The evidence was in dispute as to who started the shooting. The evidence showed that Little died from a wound made by a ball from a pistol or a rifle-the ball entering his head-and that the shot which killed Arnold was from a shotgun. It was clear that the two deputies were shot with different weapons, and that Scott was first shot with a shotgun, and Little was then shot with a rifle or pistol. One of the brothers had a shotgun and the other had a rifle. The same shot that killed Little did not kill Arnold. It was a matter of inference for the jury from the evidence that the boy who had the rifle killed Little and the other boy who had the shotgun killed Arnold. There was evidence that both the brothers were shooting. The shooting of Arnold and the shooting of Little about the same time, in the same house, in the same general difficulty, with different weapons, were separate offenses, and the acquittal of the appellant for shooting Arnold was no bar to his prosecution for shooting Little. Each act of shooting, the firing of the shotgun at one man and the firing of the rifle at another, was a separate act and constitutes a separate offense. If in the same affray a defendant shoots and kills one person and by a second act shoots and kills another, the two results by different acts of shooting cannot be said to grow out of the same unlawful act, but out of two distinct acts, and the party shooting is responsible for the two results from the two separate acts, and may be indicted and punished separately for each. If one of the brothers in the instant case killed Little with a rifle and the other killed Arnold with a shotgun, these were separate and distinct acts and offenses. "The two offenses must be the same-must be identical in law and in fact-or an acquittal or conviction of the one is not a bar to a prosecution for the other." Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Gordon v. State, 71 Ala. 315.

It results from the foregoing that charges A1 and A2 refused to defendant on the trial of his plea of former acquittal were properly refused.

There was a conflict in the evidence, and charge A3, the general affirmative charge for the defendant, on his plea of former acquittal, was properly refused.

The name of Charles F. Gilland, farmer, beat...

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18 cases
  • Clark v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 28 February 1992
    ...rumor does not render a juror incompetent as long as he does not have a fixed opinion which would bias his verdict. Blevins v. State, 20 Ala.App. 229, 101 So. 478 (1924)." Kinder v. State, 515 So.2d 55, 60 (Ala.Cr.App.1986). Because the veniremember indicated that he could eliminate the inf......
  • Bankhead v. State
    • United States
    • Alabama Court of Appeals
    • 25 November 1947
    ... ... numbered 12, 15, 16, 17, and 34 are each covered by either ... the oral charge or given written instructions. Title 7, Sec ... 273, Code 1940 ... Number ... 11 is invasive of the province of the jury and gives undue ... emphasis to only a part of the evidence. Blevins v ... State, 20 Ala.App. 229, 101 So ... [32 So.2d 819] ... [33 ... Ala.App. 274] 478; Goodwin v. State, 1 Ala.App. 136, ... 56 So. 29 ... In the ... opinions in the cases of Bringhurst v. State, 31 ... Ala.App. 608, 20 So.2d 885, and King v. State, 32 ... Ala ... ...
  • Kinder v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 9 December 1986
    ...rumor does not render a juror incompetent as long as he does not have a fixed opinion which would bias his verdict. Blevins v. State, 20 Ala.App. 229, 101 So. 478 (1924). "A juror, even though having previously expressed an opinion regarding a defendant's guilt, is not disqualified if he st......
  • Spears v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 15 April 1994
    ...the case may require. Brown v. State, 209 Ala. 490, 96 So. 475 (1923); Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 Billups v. City of Birmingham, 367 So.2d 518, 522 (Ala.Cr.App.1978), cert. quashed......
  • Request a trial to view additional results

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