Domingus v. State

• Decision Date: 25 February 1892
• Citation: 94 Ala. 9,11 So. 190
• Parties: DOMINGUS v. STATE.
• Court: Alabama Supreme Court

11 So. 190

94 Ala. 9

DOMINGUS v. STATE.

Supreme Court of Alabama

February 25, 1892

Appeal from circuit court, Dale county; J. M. CARMICHAEL, Judge.

John L Domingus was convicted of murder, and appeals. Reversed.

The appellant in this case was indicted for the murder of one George Stringer, was convicted of murder in the second degree, and was sentenced to the penitentiary for 10 years. The testimony in the case was in great conflict. The circumstances of the difficulty, as gathered from the evidence introduced in behalf of the state, are substantially as follows: The killing occurred on a Monday. The defendant and the deceased, George Stringer, had a difficulty on the Saturday preceding, which resulted in Stringer swearing out a warrant for the arrest of defendant for assault with intent to murder. On the Monday of the killing,-which was the day set for trial of the defendant,-and after the trial had been postponed, a brother of the deceased, one B. Stringer, while walking up the street in Dothan, where the killing occurred heard the defendant making some remark about the difficulty which occurred on the preceding Saturday with George Stringer, whereupon B. Stringer said to the defendant that he had not treated his brother right. A dispute arose, in which the defendant called B. Stringer a d______n liar, and B Stringer called him a d______n liar, and the defendant struck him with a club which he carried, the defendant being marshal of the town. The defendant hit the said B. Stringer several times with the club, knocking him down, senseless. Thereupon the deceased, George Stringer, came up, and said to the defendant, "That is my brother you are knocking," whereupon the defendant backed up against the store, drew his pistol, and shot at George Stringer. In the mean time George Stringer drew his pistol, and they fought together, beating each other with their pistols. Afterwards they separated, and the defendant shot at said George Stringer a second time when Stringer shot the defendant, and then the defendant shot Stringer in the head, from which wound he died instantly. There was also testimony tending to show that the deceased was shot in the back by some one during the altercation, and that there were many shots fired during the altercation. The defendant's testimony was in conflict with the state's evidence in almost every material point. On the introduction of one of the witnesses for the state he was allowed to testify, against the objection and exception of the defendant, that a short time before the encounter which resulted in the killing of George Stringer he met Stringer some distance from where the shooting took place, and that in answer to a question of the said witness to Stringer, he told him that he, Stringer, was going on to the warehouse where he was employed as a weigher of cotton. The defendant moved to exclude this testimony, and excepted to the court's overruling his motion. On the introduction of one Arthur Mathews for the defendant, he testified as follows: "I saw B. Stringer a very few moments after the difficulty in Crawford's dry goods house. His hair was bloody. I didn't notice how bad his head was hurt." The defendant then offered to prove by the said witness that a few moments after the difficulty, and while B. Stringer was in Crawford's store, and while the witness was dressing his hand, a party went to B. Stringer, and said, "Here is your box of cartridges," and that B. Stringer accepted them. The court refused to allow this testimony to be introduced, and the defendant duly excepted. There were many charges requested by the state and the defendant, but the rulings of this court render it unnecessary to set them all out in this statement of facts. Among other charges asked by the state in writing, which were given by the court, are the following: (2) "While there may be cases where the defendant has the right to anticipate his adversary, and is not compelled to stand still and wait for an advantage to be taken of him, in an emergency, rendered eminently dangerous by complicated circumstances or surroundings, the right is not to be too readily inferred by the jury. If the danger is not apparently imminent which would reasonably justify a resort to it, the defendant does so at his own hazard, and his own personal fear or timid cowardice will not excuse his undue precipitation of action; and if he deliberately armed himself with a deadly weapon, with the intent to kill and take the life of his adversary, without an impending necessity which imperiously requires such act for the prompt preservation of his own life or to prevent grievous bodily harm, he is guilty of murder, and cannot complain at suffering the just penalties of the...