Campbell v. State

• Decision Date: 10 April 1902
• Parties: CAMPBELL v. STATE.
• Court: Alabama Supreme Court

31 So. 802

133 Ala. 81

CAMPBELL v. STATE.

Supreme Court of Alabama

April 10, 1902

Appeal from Cleburne county court; T. J. Burton, Judge.

J. D Campbell was convicted of murder, and appeals. Reversed.

The uncontroverted evidence was that the homicide occurred on the premises of one W. S. Pruett, in Cleburne county, at a public sale; that Burrell Messer was the father-in-law, and that Bud Messer was a brother-in-law, of defendant; that the homicide occurred near a barn or crib on the premises of said Pruett and some 40 or 50 yards from a dwelling house on said premises; that defendant Campbell walked from about said dwelling house to the point where the homicide occurred, and as he came to said point the deceased and Burrell Messer were engaged in a quarrel; that defendant, Campbell, walked up and spoke to the deceased, and that a few words were passed between them, when deceased knocked Campbell down; and that Campbell, as he arose, and before he was fairly erect, shot deceased through the head with a pistol, from the effect of which he died in a short while, without ever speaking. There was some conflict in the testimony as to what was said by each (the defendant, Campbell, and the deceased) after Campbell walked up to where deceased and Messer were quarreling, and before deceased knocked him down. The testimony on behalf of the state tended to show that Campbell walked up and participated in the quarrel between deceased and Messer, and that he used very vile and opprobrious epithets toward the deceased before deceased struck him while the testimony on behalf of defendant, Campbell, tended to show that he approached the deceased in a quiet and orderly manner, and quietly asked deceased not to curse the "old man" (meaning Burrell Messer); that deceased then cursed Campbell, and said to him, "Do you take it up?" that Campbell replied, "Only that much. I don't want you to curse the old man;" and that thereupon deceased struck Campbell on the head, knocking him down; that as he arose he drew his pistol (a self-acting one) from his pocket and shot deceased. The testimony on behalf of defendant also tended to show that deceased had his pistol or a pair of "knucks" in his hand, with which he struck defendant, and that he had his pistol in his hand as defendant was rising, and when he fired the fatal shot. The evidence on behalf of the state tended to show that deceased had nothing in his hand when he struck defendant, or when the shot was fired, and that his pistol was taken from his pocket by his friends after the fatal shot was fired. It was shown by the testimony on behalf of defendant that deceased had made some threats towards defendant a year or so before, but it was not shown that these threats had been communicated to defendant prior to the homicide. The other facts of the case are sufficiently stated in the opinion. The defendant requested the court to give to the jury, among others, 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 any threats made by deceased towards defendant, if such threats are shown to have been made by deceased, whether recently made or not, may be considered by the jury, in connection with all the other evidence in the case, in determining whether or not there was real or apparent danger to defendant at the time he fired the fatal shot." "(4) The court charges the jury that if the defendant approached the deceased in a quiet and orderly manner; that deceased replied to him in an angry manner, and knocked defendant down; and that defendant reasonably and honestly believed that deceased struck him with a pistol, and reasonably and honestly believed that deceased had a pistol in his hand as defendant arose after he was knocked down, and that his purpose was to do defendant serious bodily harm, and the circumstances were such as to reasonably produce such belief in defendant's mind situated as defendant was at the time, and no reasonable and safe avenue of escape was open to defendant,--then defendant had the right to anticipate his assailant, and fire first and this rule would not be changed even though it should turn out that defendant was mistaken as to his belief that deceased had a pistol in his hand." "(15) The court charges the jury that if, after looking at all the evidence in the case, your minds are left in such a state of uncertainty that you cannot say, beyond a reasonable doubt whether the defendant was at fault in bringing on the difficulty, and whether he acted upon the well-grounded and...