Davenport v. State

• Decision Date: 17 December 1888
• Citation: 85 Ala. 336,5 So. 152
• Parties: DAVENPORT v. STATE.
• Court: Alabama Supreme Court

5 So. 152

85 Ala. 336

DAVENPORT v. STATE.

Supreme Court of Alabama

December 17, 1888

Appeal from city court, Montgomery county; THOMAS M. ARRINGTON Judge.

The defendant was indicted for carrying a pistol concealed about his person, and on his trial, as shown by the bill of exceptions, there was testimony offered tending to show that the defendant's life had been threatened a short while before the time he was accused of carrying the pistol concealed by one Henry Willingham, the principal witness for the state, and that such threats had been communicated to the defendant. The defendant then offered testimony tending to show that the said Willingham had the character of being a violent, turbulent, and dangerous man, which testimony was admitted without objection. The defendant offered, in the same connection, testimony tending to show that the said Willingham had, a short while before the time of the alleged charge against defendant, and in the same neighborhood, shot two other men,-one of them being his brother,-which testimony was, on objection, excluded by the court, and the defendant excepted. Defendant then, in the same connection, propounded this question to his witness, J. M. Anderson: "Do you know the general character of said Willingham, in the community where he resides, for honesty?" The court sustained an objection, to which ruling defendant excepted. The defendant then offered testimony to show that said Willingham was a dishonest man, and a thief; which testimony on objection, was excluded, and the defendant duly excepted. The defendant then asked the following written charges, which were refused by the court, whereupon he duly excepted "(1) If the jury believe from the evidence that defendant had been threatened by Henry Willingham, and that defendant believed or had reason to apprehend an attack from said Willingham, then he had the legal right to carry the pistol concealed about his person, even if they should find from the evidence that it was concealed; and they had the right to look at the character of the said Willingham, as being a dangerous man, in coming to the conclusion whether or not defendant was under an apprehension of danger. (2) The testimony of Peter Bibb, Mack Jackson, and D. C. Johnson, who testified that they saw the pistol a moment before the firing, is entitled to great weight, and coupled with the positive testimony of Nellie Micou and defendant, (that it was not concealed when drawn,) may generate a reasonable doubt in the minds of the jury, and acquit the defendant unless they believe the testimony of said...