Davis v. State

• Decision Date: 26 June 1891
• Citation: 92 Ala. 20,9 So. 616
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

9 So. 616

92 Ala. 20

DAVIS v. STATE.

Supreme Court of Alabama

June 26, 1891

Appeal from circuit court, Cherokee county; JOHN D. TALLY, Judge.

Robert Davis and John Coheley were jointly indicted for the murder in the second degree, of John J. Morelock. Coheley was acquitted, and Davis convicted of manslaughter in the first degree. He appeals. Affirmed.

The objections to the formation of the grand jury, first made on appeal, are the same as those raised in Tanner v. State 9 South. Rep. 613.

When the cause was called, the defendants stated they were not ready, on account of the absence of several material witnesses, and asked a continuance on that ground. The court put the state upon the admission of what the absent witnesses would testify, and in the showing the court refused to allow defendants to state any fact which had been testified to by the absent witnesses, and had been reduced to writing and signed by them, on the preliminary examination of defendants before a magistrate. Defendants excepted to being put upon a showing, and also to the court's refusal to allow them to make a full statement as to what the absent witnesses would testify.

The testimony for the state tended to show that prior to February 1, 1890, there was ill feeling existing between J J Morelock, the deceased, and the defendant Davis, and that Davis had been ordered not to come to Morelock's house. On the night of February 1, 1890, there was a party at the house of Morelock, where several young people had gathered and Davis, together with defendant Coheley, and Kye Williams came to the house. Morelock, who was standing in the hall of his house, heard them outside of the gate, which was variously estimated to be from 17 to 30 feet from the porch, and hailed them and asked "Who is that?" Upon being told by Davis that it was he, deceased told him not to come in, but Davis continued to come towards the house through the gate, and Morelock told him two or three times to halt and not come into his house. When Davis got to the steps of the house he threw his hands back of him and said, "Shoot, and be damned;" and Morelock, who had in his hands a gun, raised it and shot Davis about the hips, and then went into a room and picked up an axe. After Davis was shot he advanced towards Morelock, came upon the porch, and shot him with a pistol as he was in the door of the room. Morelock hit Davis several times with the axe, and Davis called and said, "John, John," whereupon defendant Coheley came in and hit Morelock several times upon the head, one blow of which fractured his skull. The physician who attended Morelock stated that he died from the effects of the pistol wound on the next day after he was shot, and that the pistol shot was of itself sufficient to produce death.

Upon the introduction of the showing of Kye Williams as evidence, and also on the examination of Robert Coheley, the state objected to each of the witnesses testifying "that it was the custom to go to parties without invitation, by young people in the neighborhood," and the court excluded the testimony. After Martha J. Morgan, a witness for the defendants, had testified, on direct examination, that about two weeks before the difficulty Ida Morelock, daughter of deceased, had told her, in the presence of Davis, that she (Ida) was going to have a party at her house on the first night in February, she was asked, on cross-examination, "When Ida Morelock came after you to go to the party, did she not say that Davis and Coheley [defendants] were gone to Georgia, and they could have the party?" Defendants' objection to this question was overruled. The defendants offered to prove by Charles Hickman that on Christmas eve night preceding this difficulty the witness was at the house of J. J. Morelock, and by agreement with Davis he was to get permission of Morelock for Davis to come to his house and talk until bed-time, and that, after having gone to Morelock's house, he returned to the home of Davis, and tried to get him to go down to Morelock's house, and that he refused to go. The court refused the offer. Other evidence for defendants tended to show that, at the time Morelock shot, Davis was within a few feet of him, and that as soon as he had told Davis to halt Morelock fired, without waiting to speak to him again.

The court gave the following written charges asked by the state: "(1) No person is excused for taking human life if with safety to his own person he could have avoided or retired from the combat. (2) If Davis could have retreated without increasing his danger after Morelock shot him, then he should have done so, and if he did not do so, but followed Morelock to the room, and fired the fatal shot, then he cannot invoke the doctrine of self-defense."

After having asked the general affirmative charge in their behalf the defendants requested the court to give, among others, the following written charges, which were refused: "(1) Before Morelock can be excused for shooting Davis it must appear from the evidence that he (Morelock) had reasonable ground to believe that he was in danger of great bodily harm at the hands of Davis." "(5) If Davis was guiltless of any fault up to the time that Morelock shot him, and if the jury believe from all the evidence that after Morelock shot Davis he (Davis) was unable to get out of Morelock's way, then Davis had a right to pursue Morelock to the room near by, and kill him, if he (Davis) reasonably thought this killing was necessary to save his life or prevent any further bodily harm." "(8) If the jury believe from the evidence that Davis went to Morelock's house to meet young people there at a party, and he reasonably supposed from having previously met Morelock and from other circumstances that he would be received as a guest, and that upon entering the house Morelock, without attempting the use of gentle means, shot him to prevent his entering, and was about or attempting to use an axe or other weapon likely to produce death upon Davis, and Davis, from being disabled from the shot, was unable to retreat or get out of the way of Morelock, and he reasonably believed and had cause to believe that if he turned his back he would increase his danger, then he had the right to shoot to save his own life or protect himself from great bodily harm." "(13) If the jury believe from the evidence that Robert Davis went to Morelock's to a party, and that he, at the time he was shot by Morelock, was quietly entering his piazza, with no hostile demonstrations, and that Morelock shot him in that condition, and it reasonably appeared to Davis that he was in danger of great bodily harm from Morelock at the time he (Davis) shot Morelock, then Davis was justifiable, and should be acquitted." "(16) If Davis, at the time he was shot by Morelock, had nothing in his hand, and was making no demonstrations to injure Morelock, and was in a quiet manner entering his house, and Morelock, without any demonstrations on the part of Davis, shot him, and Davis had reasonable ground to fear further great bodily harm from Morelock, and with this belief shot him, he is not guilty as charged." "(19) That, if the jury believe from the evidence that when Davis was shot by the deceased, his body and mind was so shocked by the wound as to deprive him of momentary reason, then he could not be guilty as charged in the indictment." "(21) More lock was not authorized to resist Davis in civilly entering his house by shooting him with a gun, and if Morelock wrongfully assaulted Davis with a gun, and Davis, acting under the reasonable apprehension that he was in danger of great bodily harm at the hands of Morelock, fired upon Morelock, then he was justifiable, and should be acquitted." "(24) There is no proof that Morelock ordered Davis not to come to his house or enter his...