Dabney v. State

Citation113 Ala. 38,21 So. 211
PartiesDABNEY v. STATE.
Decision Date08 January 1897
CourtSupreme Court of Alabama

Appeal from city court of Montgomery; John G. Winter, Judge.

Mark Dabney was convicted of murder, and appeals. Affirmed.

The evidence for the state, as shown by the bill of exceptions tended to show that, upon the night of the killing, Flem Faulkner came to the house which was occupied by his wife Harriet Faulkner, and asked for admittance; that he was refused admittance to the house, whereupon he proceeded to break down the door, and, upon entering the door, he was shot by the defendant; that the defendant was in the house of Harriet Faulkner, armed with a pistol; that Harriet Faulkner the wife of the deceased, was in there with him undressed and there was no light in the house. The testimony for the defendant tended to show that upon Flem Faulkner's coming to the house, and demanding admittance, he said that he had come there to kill both the people who were in the house; and that, after breaking open the door, he entered the house with his pistol drawn, and pointed at the defendant, whereupon the defendant fired and killed him; and that there was no exit from the house except through the door Flem Faulkner was entering at the time he was killed. The court charged the jury, ex mero motu: "The mere fact, of itself and alone that the defendant was caught in company with the wife of the deceased, and in preparation of a contemplated act of adultery, if the evidence establishes beyond a reasonable doubt that such was the case, does not deprive the defendant of the doctrine of self-defense, provided there was a present, impending peril to life, or danger of great bodily harm, either real or so apparent as to create a bona fide belief of an existing necessity for taking the life of the deceased, and provided there was at the time no convenient or reasonable mode of escape by flight without increasing his own peril. But if the defendant, having reason to believe that he would probably be detected by the deceased in his contemplated adulterous intercourse, if such were his purpose, and while armed with a deadly weapon, and with the preconceived purpose and formed design of using said weapon on the deceased should he be thus detected, and should it become necessary to protect himself from any assault the deceased might make on him, even of a deadly nature, then defendant would be deprived of the doctrine of self-defense for, under such facts, if they be facts, he would not be free from fault in bringing on the difficulty. But such facts must be established to the satisfaction of the jury beyond all reasonable doubt, and the burden of proof is on the state, when the jury are reasonably satisfied from the evidence of the existence of the other elements, as before charged, necessary to invoke this doctrine." Defendant objected to that part of the charge of the court commencing with the words, "But if the defendant, having reason to believe," and thence on to the end. The court gave the following charge, at the instance of the state: "If the jury believe from the evidence beyond a reasonable doubt that in this county, and before...

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15 cases
  • Warren v. State
    • United States
    • Supreme Court of Alabama
    • June 30, 1916
    ...... failure to so charge in this case; but, as we are reversing. for failure to allow other proof, we do not decide this. question. Gafford's Case, 122 Ala. 54, 25 So. 10;. Robinson's Case, 155 Ala. 67, 45 So. 916; Montgomery. v. State, 160 Ala. 7, 49 So. 902; Dabney's Case, 113. Ala. 38, 42, 21 So. 211, 59 Am.St.Rep. 92; Stallworth's. Case, 146 Ala. 15, 41 So. 184. . . While. it is not reversible error for the trial court to fail or. decline to instruct the jury as to manslaughter when there is. no tendency in the evidence to justify a ......
  • Thomas v. State
    • United States
    • Supreme Court of Alabama
    • January 24, 1907
    ......614, 30 L.Ed. 708. . . "If. a husband finds his wife committing adultery and under the. provocation instantly takes her life, the homicide is only. manslaughter." Hooks' Case, 99 Ala. 166, 13 So. 767;. McNeill's Case, 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17; Dabney's Case, 113 Ala. 38, 21 So. 211, 59 Am. St. Rep. 92; Williams' Case, 130 Ala. 107, 112, 30 So. 484. There is nothing in the evidence as disclosed by the record. which tends to show such a provocation; nor is there anything. [43 So. 375] . disclosed which tends in the slightest to show ......
  • Gafford v. State
    • United States
    • Supreme Court of Alabama
    • January 11, 1899
    ...... offense, and whether he acted under the heat of sudden. passion, thereby excited, as in other cases of homicide under. the heat of passion excited by great provocation. Hooks. v. State, 99 Ala. 166, 13 So. 767; McNeill v. State, 102 Ala. 125, 15 So. 352; Dabney v. State, 113 Ala. 38, 21 So. 211. It will be observed that. these three cases do not contravene the doctrine as laid down. by Bishop, but simply do not require that it shall be. necessary that the husband shall detect or discover them in. the very act of adultery. . . I have. ......
  • Angling v. State
    • United States
    • Supreme Court of Alabama
    • June 18, 1903
    ...... under the provocation, instantly takes her life, or the. adulterer's, the homicide is only manslaughter." 2. Bishop's New Crim. Law, § 708; McNeill v. State,. 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17; Hooks v. State, 99 Ala. 166, 13 So. 767; Dabney v. State, 113 Ala. 38, 21 So. 211, 59 Am. St. Rep. 92. Likewise, there was no error in excluding the evidence. offered by defendant that he had, previous to the killing,. ordered deceased to stay away from his house. Johnson v. State (Ala.) 34 So. 209. It might well have been. admitted in ......
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