Corder v. State
| Decision Date | 07 January 1947 |
| Docket Number | 6 Div. 342. |
| Citation | 28 So.2d 651,32 Ala.App. 584 |
| Parties | CORDER v. STATE. |
| Court | Alabama Court of Appeals |
D. D. Patton, of Carrollton, and W. A. Davis of Aliceville, for appellant.
Wm N. McQueen, Atty. Gen., and MacDonald Gallion, Asst. Atty Gen., for the State.
The following charges were refused to defendant:
'I charge you, Gentlemen of the Jury, that if you find from the evidence in this cause that the deceased was trespassing upon the curtiledge of the defendant with a weapon in such a way or manner, that a reasonable or prudent man would infer from the same or similar circumstances to believe that he was in danger of being killed or of having great bodily harm inflicted upon him at the time, then you should acquit the defendant.
'I charge you, Gentlemen of the Jury that, if you believe from the evidence in this cause that, at the time of the killing of deceased, he was on the premises of defendant and advancing on the defendant, who, at that time was standing on the porch or gallery of the home of the defendant, with an open drawn knife in his hand and threatening the defendant you must find the defendant not guilty.'
This appellant was indicted for murder in the second degree, and by a jury found guilty of manslaughter in the first degree. His punishment was fixed at imprisonment in the state penitentiary for a term of five years.
The evidence is undisputed that appellant killed the deceased, Isiah Benton, by shooting him with a shotgun in the fore part of the head. The scene of the shooting was the home of the appellant who was standing on his front porch when he fired the gun. The deceased fell so that his head and one arm was resting on the low porch.
From this point on there is conflict in the testimony of the witnesses for the state and those for the defendant pertaining to the conduct of the appellant and the deceased.
The tendency of the evidence presented by the state was that appellant came into his home, procured his shotgun and went out onto his front porch where he called for the deceased with cursing and threats. The deceased was hiding behind an automobile parked in the appellant's yard, and when he came from behind the car he was shot by appellant. The deceased, according to these witnesses, did not have a knife or other weapon, though one of the state's witnesses said she heard the deceased tell the appellant he was going to 'cut his God damn ears off' when he came from behind the car. No knife or other weapon was found on or near the deceased by Dr. Ashcraft or Sheriff Shirley who searched for one upon their arrival shortly after the killing. Other witnesses testified that no one had approached the body of the deceased after the shooting and prior to the arrival of Dr. Ashcraft.
The tendency of the testimony presented by the defense was to the effect that the appellant and deceased had been participants in a crap game a short distance from appellant's home. They engaged in an argument during this game and deceased had knocked appellant down and threatened him with an opened knife. The deceased had then left the crap game and the appellant went immediately to his home. He procured his gun and went out on his...
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