Cox v. State
Decision Date | 17 April 1923 |
Docket Number | 4 Div. 859. |
Citation | 96 So. 83,19 Ala.App. 205 |
Parties | COX v. STATE. |
Court | Alabama Court of Appeals |
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Wyatt Cox was convicted of murder in the second degree, and he appeals. Reversed and remanded.
The following charges were requested by the defendant and refused by the court:
E. C. Boswell, of Geneva, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
Defendant, appellant, was convicted of murder in the second degree. The evidence of the prosecution tended to show that the defendant and deceased, Erastus Lay, had a fight in the home of deceased a short time prior to the killing; that after this difficulty defendant left the house, went into the yard, picked up a small axe, returned to the house, renewed the difficulty, struck deceased in the head with an axe, and killed him.
Defendant contended that his hat and his children were in the house; that as he went on the front porch to get them deceased came out of the door with a rifle in his hand, presented it at defendant; and that he struck the fatal blow in self-defense. There was some evidence of threats made by deceased against defendant immediately following the first difficulty.
Many questions are urged by counsel for appellant as affecting the judgment with prejudicial error.
1. Mrs. Annie Lay, a witness for the state, and Ruby McElvain, a witness for defendant, were allowed to testify that the rifle or gun which the defendant claimed the deceased presented at him at the time of the fatal rencounter would not shoot.
If the circumstances attending the killing were such as to justify a reasonable belief that the defendant was in imminent danger of death or serious bodily harm, and he honestly believed such to be the case, it was immaterial whether there was such danger or not. Gray v. State, 171 Ala. 37, 55 So. 124; Hubbard v. State, 172 Ala. 374, 55 So. 615; Caldwell v. State, 160 Ala. 96, 49 So. 679; Twitty v. State, 168 Ala. 59, 53 So. 308; Fantroy v. State, 166 Ala. 27, 51 So. 931; Kennedy v. State, 140 Ala. 1, 37 So. 90.
Defendant had the right to act upon the appearance of things, such appearance as would induce a reasonable person in defendant's position to believe that he was in imminent danger of serious bodily harm. He was not required, before striking in his own defense, to ascertain if the gun would shoot. Bluitt v. State, 161 Ala. 14, 49 South 854; Chaney v. State, 178 Ala. 44, 59 So. 605; Black v. State, 5 Ala. App. 87, 59 So. 692. The court erred in allowing the witnesses to testify that "the gun would not shoot."
2. J. H. Anderson, a witness for the state, testified that after the killing defendant and his wife went to witness' house, some distance from the home of deceased; that defendant's wife left witness' house, and in a little while returned; that shortly after her return witness overheard a conversation between defendant and his wife. He heard defendant say in that conversation that he wanted to go back down there (to the house of deceased), and she told defendant he need not go; "Erastus Lay is killed, if he ain't already dead;" that defendant replied, "God being my helper, I hope I have." Witness was asked, "Hope I have what?" and replied, "Killed him." It is insisted by counsel for appellant that the court was in error in admitting the above-mentioned declaration made subsequent to the killing upon the grounds: (1) That it was immaterial, (2) that it was not part of the res gestæ. This declaration, so separate in point of time and place from the killing, is not to be regarded as part of that transaction. At the time of the declaration the difficulty was a thing of the past, the defendant had left the scene, and the incident was closed. It was not of the res gestæ. Pitts v. State, 140 Ala. 70, 37 So. 101; Nelson v. State, 130 Ala. 83, 30 So. 728; Harkness v. State, 129 Ala. 71, 30 So. 73; Hill v. State, 156 Ala. 3, 46 So. 864; Hickman v. State, 12 Ala. App. 22, 67 So. 775. The declaration proved was a confession by defendant that he did the killing, and as such was material.
While a confession is prima facie involuntary and inadmissible, and as a general rule its admissibility is determined by inquiry made to ascertain whether the same was voluntary or involuntary, this is not the...
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Thomas v. State
...overruled in Ex parte Davis, 184 Ala. 26, 63 So. 1010 (1913). Black v. State, 52 Ala.App. 528, 294 So.2d 777 (1974); Cox v. State, 19 Ala.App. 205, 96 So. 83 (1923). This charge invades the province of the jury and was properly refused. This is especially true since the court instructed the......
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Robinson v. State
...appeal, and the appellant can take no advantage of it here. Patterson v. State, 51 Ala.App. 659, 288 So.2d 446 (1974); Cox v. State, 19 Ala.App. 205, 96 So. 83 (1923). We have searched the entire record for error as required by law and have found none. Therefore, this case is due to be and ......
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