Brown v. State

• Decision Date: 28 February 1888
• Citation: 3 So. 857,83 Ala. 33
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

3 So. 857

83 Ala. 33

BROWN v. STATE.

Supreme Court of Alabama

February 28, 1888

Appeal from circuit court, Marengo county; W. E. CLARKE, Judge.

The defendant in this case, Edwin J. Brown, was indicted for the murder of David S. Jordan, by shooting him with a pistol, was tried on the issue joined on the plea of not guilty convicted on the second trial, as shown by the present record, of manslaughter in the first degree, and sentenced to hard labor for the county for 18 months. The indictment was found in Clarke county, but the trial was moved to Marengo on application of the defendant. The difficulty between the parties, as the bill of exceptions shows, occurred in the office of a justice of the peace, during the trial of a prosecution for trespass after warning, which the defendant had instituted against said Jordan and his two sons. The defendant had been examined as a witness, and his testimony had been taken down in writing by one York, who was acting as clerk for the justice. York handed him the paper to sign, and at the same time a piece of board, which he had held in his lap while writing, and which was described as the "top of a cracker box." The defendant took the paper and the board, and was signing his name, holding the paper on the board in his lap, when Jordan made some remark to the effect that he had sworn to a lie, or had perjured himself; and that he thereupon jumped up and struck Jordan over the head with the board, breaking it into several pieces. Jordan, who was a larger and stronger man than the defendant, then rushed on him, and knocked or threw him down; and the defendant then drew his pistol, and fired two shots at Jordan, one while he was down on the floor, and the second as he was rising. The first shot struck the deceased in the abdomen, and he died from the effects of the wound a few days afterwards. The parties had been on bad terms for several months, and there was evidence of repeated threats made by each against the other. B. A. Clanton, one of the witnesses for the defense who had testified to threats made by the deceased, and his own advice to deceased to let Brown alone, further testified to declarations made to him by the deceased on the evening before his death, as follows: "I ought to have taken your advice, but I would have gotten him any how, if he had not been too quick for me." These were admitted as dying declarations. The court gave the following charge to the jury, in writing, at the request of the solicitor: "(1) To make out a case of justifiable self-defense, the evidence must show that the difficulty was not provoked or encouraged by the defendant, and that the defendant was, or appeared to be, so menaced at the time as to create a reasonable apprehension of danger to his life, or of grievous bodily harm, and that there was no other reasonable hope of escape from such present impending peril." To this charge the defendant excepted. The defendant requested the following charges in writing, and duly excepted to their refusal "(1) If the jury believe from the evidence, that at the time of the killing the defendant entertained an honest belief in the existence of a present necessity on his part to kill, in order to save his own life, or to prevent the infliction of grievous bodily harm; and the circumstances, at the time, were such as to impress the mind of a reasonable man, under the same state of facts, with a belief of such imminent peril and urgent necessity; and if they...