Carter v. State

• Decision Date: 07 April 1921
• Docket Number: 8 Div. 298
• Citation: 88 So. 571,205 Ala. 460
• Parties: CARTER v. STATE.
• Court: Alabama Supreme Court

88 So. 571

205 Ala. 460

CARTER v. STATE.

8 Div. 298

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Charley Carter was convicted of murder in the second degree, and he appealed. Affirmed.

In a prosecution for murder, there was no error in refusing charges as to the several degrees of unlawful homicide; it being open to the jury to convict of any degree.

The party killed was Dave Robinson, and his brother testifying stated that he had a conversation with Dave before the docter examined him, in which Dave stated that he was going to die. The doctor then examined him, and told him that there was not a chance for him, and Dave then made a statement to the doctor in presence of witnesses. The witness was then permitted to detail the statement made. The witness Jarrett testified that he did not see the shooting, but that he saw the defendant and the deceased about five minutes after the shooting, and that the defendant and his brother were trying to get the deceased to stand up. The solicitor asked the following question, "To refresh your recollection didn't defendant say to deceased, 'God damn you stand up; you can walk?"' This was objected to because leading. Objection being overruled, the witness answered, "I think the way he said it was, 'You damn fool; stand up."' The defendant then moved the court to exclude the answer, as it was immaterial and irrelevant and because not an answer to the question put to him.

Dr. Allen stated that two or three hours after the killing he had a conversation with the defendant, in which he said to the defendant, "Charley, I am sorry this happened." To which the defendant did not reply. Witness then said, "Both of you got my sympathy," and defendant replied, "See, you don't know a thing about it."

The witness Louise Roberts stated that she was eight years old; that she believed in a good place and a bad place hereafter; that she went to Sunday school; and if she told a lie she would go to the Bad man.

The following charges were refused to the defendant:

(4) "The presumption in this case is that the defendant is innocent until the state has proven beyond all reasonable doubt that he is guilty, and if the jury have a reasonable doubt, growing out of the evidence, as to whether he was sufficiently sober to form a specific intent to take life, then the jury cannot find the defendant guilty of murder."

(5) "Unless you believe from the evidence, beyond a reasonable doubt, that the defendant fired the shot intentionally that killed deceased, you should find the defendant not guilty."

(6) "If the shot that killed deceased was accidentally fired, then you cannot convict the defendant."

(11) "The burden is on the state to show that the killing of the deceased by this defendant was intentionally done."

(13) "I charge you that it was a violation of law for the defendant to have carried a pistol concealed about his person, or to have carried it about his person on premises not his own, or not under his control, and on this occasion. But I further charge you that as a matter of law such carrying of a pistol on the occasion of the shooting of the deceased would not render the defendant guilty in this case unless such carrying of the pistol was the proximate cause of the shooting or the killing, and I charge you that under the evidence in this case, such carrying of the pistol on this occasion was not the proximate cause of the shooting or the killing."

(14) Practically the same as 13.

(17) Practically the same as 13.

(15) "Before you can convict the defendant in this case, you must be satisfied beyond reasonable doubt, from the evidence in the case, that defendant had a criminal intent to do the killing."

(19) "Neither the intoxication of the defendant on this occasion nor the carrying of the pistol by him concealed about his person, or on the premises where the shooting occurred, constituted the proximate cause of the shooting and the killing."

(20) Practically the same as 19.

(23) "Before you can convict the defendant in this case, you must be satisfied from the evidence in the case to a moral certainty that the defendant had a criminal intent to do the killing, or that the defendant wantonly did the killing, and I charge you that to constitute the acts or conduct of defendant on this occasion, in the handling of the pistol, and shooting of the deceased, as being one, you must believe from the evidence in the case that the defendant at the time was conscious of his conduct, and, without having the intent to injure, he was at the time conscious, from his knowledge of the existing circumstances and conditions, that his conduct would likely or probably result in injury, and I charge you that a mere error of judgment on the part of the defendant on this occasion as to the result of his acts, having at the time no evil intent, and not being conscious of probable result, would not amount to wantonness within the meaning of the law, and if after a consideration of all the evidence in the case you have a reasonable doubt as to whether or not the defendant at the time was conscious of the probable result, or if you have a reasonable doubt from the evidence as to whether or not he intentionally did the killing, I charge you that in either event you should acquit the defendant."

(27) "A mere error in judgment on the part of the defendant on this occasion as to the manner of handling the weapon, and to the result of his acts, would not authorize a conviction in this case."

(30) Same as the first part of charge 23.

J.G Rankin, of Athens, for appellant.

J.Q Smith, Atty. Gen.,...