Bondurant v. State

• Decision Date: 05 April 1900
• Citation: 125 Ala. 31,27 So. 775
• Parties: BONDURANT v. STATE.
• Court: Alabama Supreme Court

27 So. 775

125 Ala. 31

BONDURANT v. STATE.

Supreme Court of Alabama

April 5, 1900

Appeal from city court of Selma; J. W. Mabry, Judge.

Cager Bondurant was convicted of murder in the second degree, and he appeals. Affirmed.

When the case was called for trial, there was a motion made to quash the venire of the regular juries. The grounds of this motion and the facts pertaining thereto are sufficiently stated in the opinion. The motion was overruled, and the defendant duly excepted. The evidence for the state tended to show that the defendant was guilty of murder. The evidence for the defendant tended to show that he shot defendant in self-defense. Louis Jackson, a witness introduced by the state, testified that he was present at the time of the killing, and narrated the circumstances of the killing. Upon the witness being recalled, he was asked if he did not state to Mr. Percy Dawson, the chief of police, on the night of the killing, certain facts which were in conflict with his testimony as given on the trial. The witness testified that he did not remember making such statements, and did not desire to change or explain any of the testimony that he had given on the trial of the case. Upon Mr. Percy Dawson being called as a witness, he testified that Louis Jackson did, on the night of the killing of William Lipscomb, testify to the facts included in the question asked the witness Louis Jackson. In his charge to the jury the court instructed them in reference to the impeachment of the witness Louis Jackson as follows: "Gentlemen of the jury, when a witness testifies for one side it is competent for the other side to introduce another witness to swear that on a particular occasion that witness made statements different from the statements that he made on the stand, and that is done for the purpose of impeaching or tending to impeach the particular witness' veracity before the jury. That is the purpose of introducing Mr. Dawson here. The defendant claims that this particular witness (Louis Jackson) made statements to Mr. Dawson different from the statements he testified to here, and that is done for the purpose of tending to show (and it is for you to give the evidence such weight as it is entitled to) he is not worthy of credit, and that is the purpose for which it was introduced. That, however, does not show in any manner that what he told Mr. Dawson was true or untrue; in other words, what he told Mr. Dawson is a declaration made by him outside of the court, and that itself is not original evidence in this case. It is evidence tending to show that this witness made contradictory statements about this case." To this portion of the court's general charge the defendant duly excepted. The bill of exceptions then contains the following recital in reference to the court's charge: "Thereupon the court gave, orally its general charge to the jury, and in said charge the court after instructing them as to the elements, respectively, of murder in the first degree and murder in the second degree and manslaughter in the first degree, and that to constitute murder in the first degree the killing must have been willful, deliberate, malicious, and premeditated, and that it was essential, to constitute that crime, that all these elements should co-exist in the mind of the slayer at the time of the killing, and that the premeditation and deliberation need not have been the creation of a week or two, or any particular length of time, but that it is sufficient if these, with the other two elements, existed in the mind of the slayer at the time of the killing, though they may have existed for only a moment before,-in said charge made use of the following language or illustration 'For instance, if I, in the instant before the killing conceived the idea of deliberately and premeditately taking the life of a man, and did do it, it would be murder in the first degree, although I conceived that purpose only an instant before."' The defendant separately excepted to this portion of the court's general charge, and also separately excepted to the following portions of said charge which are numbered for convenience: (1) "If the evidence is irreconcilable, you must consider that evidence which you deem worthy of credit, and discard that which you do not deem worthy of credit. You must give the evidence just such weight as you think it deserves." (2) "Gentlemen of the jury, the court instructs the jury that they should weigh all the evidence and reconcile it, if possible; but, if there be irreconcilable conflict in the evidence, they ought to take that evidence which they think worthy of credit, and give it just such weight as they think it entitled to." (3)"In weighing the evidence, each piece and all the evidence should be weighed with all the other evidence; and you should make up your verdict from due consideration of the whole of the evidence. If the jury, after considering all the evidence, have a reasonable doubt of defendant's guilt arising out of any part of the evidence, they should find him not guilty. But this does not mean that you have got to find every single item of testimony to be true before you can convict. If, after weighing all the evidence, you have a reasonable doubt as to any of the elements which constitute any offense charged in this indictment, then you are bound to acquit. It does not mean that you have got to believe every word of the testimony in order to convict." At the request of the state, the court gave to the jury the following written charges: (1) "The court charges the jury that in a case of homicide the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption of malice, unless the evidence which proves the killing shows also that it was perpetrated without malice; and, whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts and evidence, there can be no conviction for any degree of homicide less than murder." (2) "The court charges the jury that in the case of homicide no mere words used by the deceased towards the defendant, however abusing or insulting, will reduce the offense or degree of homicide to less than murder." (3) "The court charges the jury that the...