Carter v. State

• Decision Date: 27 July 1887
• Citation: 2 So. 766,82 Ala. 13
• Parties: CARTER v. STATE.
• Court: Alabama Supreme Court

2 So. 766

82 Ala. 13

CARTER v. STATE.

Supreme Court of Alabama

July 27, 1887

Appeal from circuit court, Jackson county; Hon. JAMES W. LAPSLEY Judge.

The defendant, James Carter, was indicted for the murder of Daniel Smith, by shooting him with a pistol, convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of seven years. It was shown on the trial that the killing occurred at the house of one Charles Smith on the morning of February 24, 1886; that the defendant had stopped at the house, in company with one Ed. Kirksey who was a brother of Charles Smith's wife; that Ed Kirksey and his brother Ben, who was also at the house, began to quarrel in the house, and went out into the yard to fight Ben having an open knife in his hand; that the defendant went out, at the request of Mrs. Smith to prevent them from fighting, and, addressing himself to Ben, said: "Don't you cut Ed.; if you want to fight, I'd rather do Ed.'s fighting;" that the deceased, who was standing near the house, "then came walking briskly up, and told Carter not to jump on Ben, and, if he wanted to fight anybody, to fight him," the deceased; that Carter replied: "I came here with Ed., and I don't propose to see him run over;" that some other words passed, when Mrs. Smith attempted to get between them, jerking Carter to one side, just as the deceased struck him over the head, or struck at him, with a bridle which he then had in his hand; that Carter then fired his pistol, and at the third shot killed the deceased. This was, in substance, the testimony of Mrs. Smith, who was examined as a witness for the prosecution. Ed. Kirksey, a witness for the defense, gave the same account of the difficulty, but further said that the deceased "first threw a rock at Carter, striking him on the head, and then began striking him over the head with a bridle."

The court gave the following charges to the jury on request of the state's attorney: "(1) If the jury believe from the evidence, beyond a reasonable doubt, that Carter could have retreated from Smith when Smith made the assault on him (if they find that Smith did assault him,) without increasing the danger to his life or body, the rule of law requires him to retreat, rather than take the life of Smith. (2) Under the law the party slaying must be without fault, to make the plea of self-defense available. (3) If the jury believe from the evidence, beyond a reasonable doubt, that Carter, after he was assaulted by Smith, (if they find Smith did assault him), could have retreated without increasing the danger from Smith, then the law requires that he should have done so. (4) If the jury believe from the evidence, beyond a reasonable doubt, that Carter, by turning his back to Smith in retreating, if he had done so, did not increase the danger to his life or body, or did not increase the danger of being maimed,-that is, of losing an eye, an ear, or other member of the body by a blow from the bridle, or other missile or weapon in the hands of Smith,-then the law requires that he should have retreated, rather than take the life of Smith." The defendant duly excepted to each of the charges as given, and also to the refusal of the following charge, which was asked by him in writing: "If the defendant could not reasonably and...