Boulden v. State

• Decision Date: 05 April 1894
• Citation: 15 So. 341,102 Ala. 78
• Parties: BOULDEN v. STATE.
• Court: Alabama Supreme Court

15 So. 341

102 Ala. 78

BOULDEN v. STATE.

Supreme Court of Alabama

April 5, 1894

Appeal from city court of Decatur; W.H. Simpson, Judge.

Todd Boulden was convicted of murder in the second degree, and appeals. Reversed.

Upon the trial of the case, as is shown by the bill of exceptions the evidence for the state tended to show that prior to January 6, 1893, the deceased had leased a farm in Morgan county. That on the morning of January 6, 1893, he, in company with his brother, Jim Herndon, and three other persons, went in a wagon to a place on said farm, where the defendant was knocking plank off of a fence. That previous to that date the deceased and his brother had ordered the defendant to leave the farm, and had forbidden his taking the plank from the fence. That on arriving at the place where the defendant was knocking off the said plank the deceased and his brother got out of the wagon, his brother having an ax in his hand, which he laid down by the side of a pile of lumber. That, the two going within a few feet of the defendant, the brother of the deceased, Jim Herndon, said to the defendant "Todd, what are you going to do with this plank?" to which the defendant replied, "I am going to move it." Jim Herndon said, "Don't you move this plank; it is ours;" whereupon the defendant replied "Don't you move it either," and immediately struck at Jim Herndon with an ax, and cut him on the chin. That when the defendant went to strike Jim Herndon the second blow the deceased said to him, "Don't do that," and grabbed the defendant from behind; that the defendant dropped his ax, and then turned on deceased, and began cutting him. That Jim Herndon then ran up to where the deceased and the defendant were scuffling, and, grabbing the defendant in the back by his collar, pulled him loose whereupon the defendant turned on Jim Herndon, and commenced to cut him. That the deceased then drew his pistol, and shot at the defendant twice. One Dymus Todd then ran up, and took the pistol from the deceased, stepped back, and shot at him twice. That said Dymus Todd then held, first the deceased and then Jim Herndon, in order that the defendant might cut them. That the said Jim Herndon, getting away, walked off a short distance, and that, as the deceased tried to follow him, he walked under a barbed-wire fence, which caught him by the collar of the coat, and when so held the defendant ran up to him, and stabbed him in the back, the knife penetrating his lungs, and that it was from this blow that death ensued. The testimony for the defendant was in conflict with that of the state as to which was in fault in bringing on the difficulty, and tended to show that, upon the deceased and his brother coming up to where the defendant was knocking plank off the fence, and the defendant saying that he was going to move the plank, the said Jim Herndon struck at him with his ax; that the defendant warded off the blow with his own ax, which struck Jim Herndon; that thereupon the deceased made for the defendant, drawing his pistol, and shot at him; that when the deceased shot him the defendant walked off, and the deceased, following him, struck him; and that, as the deceased turned, after having struck the defendant, the defendant cut him in the back.

The rulings of the court as to the introduction of the dying declarations, as testified to by the witness Banks, are sufficiently shown in the opinion. On the cross examination of the witness Banks he was asked if he had met the wife of the deceased in the courthouse building, and, after answering that he had, the defendant then asked him the following question: "If she had undertaken to repeat to him what her husband said in his dying declaration, which was written by the witness." The state objected to this question. The court sustained the objection, and the defendant duly excepted. On the cross-examination of one Ritch, a witness for the state, and after he had testified that he arrested the defendant and Dymus Todd, the defendant asked said witness, "Who swore out the warrant for the defendant and Dymus Todd?" The court sustained the state's objection to this question, and the defendant duly excepted. During the examination of the defendant as a witness in his own behalf, and after having given his version of the difficulty, he was then asked "if, at the time of the difficulty, he knew of any claim of any person to the lumber when he went to work that morning." The state objected to this question. The court sustained the objection, and the defendant duly excepted.

The court, at the request of the solicitor for the state, gave the following written charges to the jury: (1) "To prove beyond a reasonable doubt that the defendant is not guilty does not mean that the state must make the proof by an eyewitness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If from all the evidence the jury believe it is possible, or that it may be, or perhaps, the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle the defendant to an acquittal. All that is required is that the jury should, from all the evidence, believe beyond a reasonable doubt that the defendant is guilty; and if you so believe, and you further believe, beyond all reasonable doubt, from the evidence, that the killing occurred in this county, and before the finding of this indictment, you must find the defendant guilty although you may also believe from the evidence that it may be that he is not guilty, or that it is possible that he is not guilty." (2) "Gentlemen of the jury, I instruct you, as a matter of law, that in considering the case you are not to go beyond the evidence to hunt up doubts, nor must you entertain such doubts as are merely imaginary or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubts interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say that you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt." (3) "If the defendant provoked, or brought on the difficulty, or entered willingly into the fight with deceased, then he cannot set up self-defense in this case." (4) "To sustain the plea of self-defense set up in this case the burden is on the defendant to prove to your satisfaction that he had no reasonable and safe avenue of escape from the danger which threatened him, and not on the state to prove it." (5) "I charge you, gentlemen of the jury, that malice, in its common acceptation, means ill will against a person, but in its legal sense means a wrongful act, done intentionally, without just cause or excuse." (6) "If...