Dolan v. State

• Decision Date: 28 February 1887
• Citation: 81 Ala. 11,1 So. 707
• Parties: DOLANS v. STATE.
• Court: Alabama Supreme Court

1 So. 707

81 Ala. 11

DOLANS v. STATE.

Supreme Court of Alabama

February 28, 1887

Appeal from Mobile city court.

Indictment for murder.

The defendant below in this case, Martin Dolan, was indicted for the murder of Robert Winbush by shooting him with a gun. As disclosed in the bill of exceptions, the evidence showed that the deceased was a tenant of the defendant, and owed him money for rent, which the defendant demanded, and the deceased did not pay; that the deceased had threatened to take defendant's life, and the defendant knew of these threats; that defendant had loaned deceased a chain; that deceased had purchased a chain for himself; that, shortly before the killing, defendant had gone to the premises of the deceased, demanded rent of the wife of deceased, who was absent, and had taken away with him the chain belonging to deceased. The wife of the deceased testified that at this time defendant made use of abusive language to her, and concerning her husband, and said he would kill her husband when he came for his chain. The wife admitted facts showing bad character before her marriage with deceased. There were three other witnesses for the state, who testified, in effect, that deceased, having a trace or well chain in his hand, went up to the defendant, who was sitting on the steps of his house, tendered to the defendant the chain in his hand, and asked for his own chain. Angry words passed. Defendant called deceased "a black son of a bitch," and deceased retorted by calling defendant "an Irish son of a bitch." The deceased then left the place where defendant was sitting, walked around the corner, and started up the street. Defendant then stepped in his house, came out again with a gun in his hand, went to the corner, which was only four or five feet from where he had been sitting, and walked a short distance up the street taken by deceased, and called to him to stop, which deceased failed to do. Defendant raised his gun and snapped a cap. Thereupon deceased turned around, asked defendant what he was going to do with the gun and started towards him in a run, holding his right hand raised, and the chain doubled up in his left hand hanging down by his side. Defendant's brother then came out of the house, and told the defendant not to do that, the defendant in the mean time being engaged in looking at or doing something with that part of his gun where the trigger is; that, when deceased came within a few feet of the defendant, defendant raised his gun, and shot deceased in the chest; that deceased fell, and within a few minutes died that defendant then gave his gun to his brother, and said he was going down town and give himself up. The deceased and all the state's witnesses were negroes.

The defense introduced several witnesses whose evidence tended to show that the deceased was a man of violent, turbulent, and dangerous character, and was a large man, weighing about 175 pounds. All of the witnesses for the defense were white men the only two witnesses as to the facts being the defendant and his brother. The defendant was a small man, being very thin and very short. The testimony of defendant and his brother was, in effect, that deceased, with a chain in his hand, came to defendant as defendant was sitting on the steps of his own house, and cursed defendant, and demanded his chain. Defendant stated both chains were defendant's, and that deceased must not curse him, and he wanted him to go away, and stay away, and make no fuss; that deceased raised the chain in his hand above his head, cursed him, and said he had a mind to kill him; that defendant again asked deceased to go away, and not to threaten to kill him; that deceased again cursed him, and said he would go over to Jake Parker's and get his gun, and come back and kill defendant, and then started off in the direction of Jake Parker's. The remaining testimony did not contradict that of the state, except that the defense said deceased turned around, and started towards defendant, before he snapped the cap. Defendant's brother testified that he (the brother) had loaded the gun some time previous with bird shot, some No. 6 and some No. 7, and that he did so because he had so many enemies in the neighborhood that he had to protect himself.

In the course of argument, the question of the credibility of the witnesses was referred to, and the fact that the defendant was a white man and the deceased and all the state's witnesses were negroes. Reference was also made to the fact that evidence had been given tending to show the bad character of the deceased; the state's solicitor saying the state was precluded from showing the bad character of the defendant unless the defense attempted to show his reputation for good character, and that the state was ready to show the bad character of the defendant.

In the general charge to the jury, the court, among other things made the following statements, to each of which the defendant excepted:

"(1) Some argument has been made by the attorneys in the cause upon the question of color. I charge you that it is just as much the duty of a jury to convict a white man of the murder of a colored man as it would be the duty of the jury to convict a colored man for the murder of a white man, if you believe, from all the evidence, beyond a reasonable doubt, that the white man is guilty.

"(2) Some argument has been made as to the color of the witnesses. It is immaterial whether the witnesses were white or black; and, if you believe beyond a reasonable doubt that black witnesses are telling the truth, it is as much your duty to convict upon their evidence as though they were white.

"(3) No man can claim the protection of self-defense if, after the difficulty commenced, he could retreat without danger to himself.

"(4) If the defendant went after Winbush [followed him] after Winbush had threatened to go and get his gun, the defendant being willing and ready to meet Winbush, and fight him with deadly weapons, and the defendant killed Winbush under these circumstances, it would then be manslaughter in the first degree.

"(5) If the defendant went with the gun under such circumstances as to make Winbush believe, and Winbush did believe, that he was about to take his (Winbush's) life, and Winbush ran at the defendant to protect his own life, and when Winbush ran at him the defendant shot Winbush, the defendant would be guilty of manslaughter in the first degree.

"(6) If the jury believe from the evidence that, when Winbush went around the corner, the defendant followed him with the shotgun, being ready and willing to fight, and Winbush believed that the defendant was about to shoot him, and, so believing, started at the defendant to protect himself, and the defendant shot at him when he was coming at him, the defendant would be guilty of manslaughter in the first degree."

The following charges in writing were then requested by defendant, but the court refused to give them:

"(7) The law raises no presumption of malice, in this case, from the use of a deadly weapon; and if the jury believe from the evidence that the defendant shot the deceased without any malice, but under a reasonable apprehension, induced from all the surrounding circumstances of the case, that such shooting was necessary to prevent the execution of a threat by deceased to go and get a gun, and return and kill the defendant at the defendant's home, when he had an advantage of defendant, and that defendant fired the shot solely for that purpose, then they must acquit the defendant.

"(8) In this case the law raises no presumption of malice from the use of a deadly weapon.

"(9) The court charges the jury that, as the defendant testified as a witness in his own behalf, the state had the right, if it could, to have proven by lawful evidence that the general reputation of the defendant was bad.

"(10) Before the jury should convict the defendant of murder, they must believe from the evidence that the defendant killed the deceased with malice. The law raises no presumption of malice from the use of a deadly weapon in this case.

"(11) The court charges the jury that the law does not require a man upon whom a felonious attack is made, to fly from his assailant, if by such flight he materially adds to the danger of his receiving either immediate injury, or injury in the near future. The law only requires a man to fly from such an assault when he has reason to believe that by so doing he can avoid the danger of the attack."

Twelve, thirteen, fourteen, fifteen, and sixteen may be considered as all comprised in charge 16.

"(16) If the jury believe from the evidence that Robert Winbush was a notoriously turbulent and blood-thirsty man, and that during the difficulty spoken of in the evidence, he threatened to go and get his gun, and return and kill the defendant, and that, under all the circumstances of the case, the reasonable appearances were that the defendant's life was in imminent danger of his returning and executing his threats, and that the difficulty occurred at the home of the defendant, then the defendant was not under any legal obligation to retreat, nor wait until said Winbush obtained an advantage over him, but had a right to stop said Winbush from going after his gun by the use of any means reasonably necessary therefor; and if the jury believe from the evidence that while the defendant was trying to accomplish this by means reasonably necessary therefor, and without intending to shoot Winbush, the latter attacked him, and the character of the attack was such as to make it necessary for the defendant to kill Winbush to prevent said Winbush from doing him serious bodily harm with a chain that he then had in his hand, then they must acquit the defendant...