Dorsey v. State

• Court: Supreme Court of Alabama
• Citation: 107 Ala. 157,18 So. 199
• Parties: DORSEY v. STATE.
• Decision Date: 20 June 1895

18 So. 199

107 Ala. 157

DORSEY
v.
STATE.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Andrew Dorsey was convicted of murder in the second degree, and appeals. Affirmed.

The ruling of the court upon the formation of the jury is sufficiently stated in the opinion. The evidence for the state tended to show that Dick Wilkins, a brother of the deceased, and the defendant, were talking about the way the defendant had been treated by said Dick Wilkins in reference to his gun, which the defendant had pawned him; that upon Dick Wilkins having the gun of the defendant returned to him, upon the repayment of the loan made, the defendant leveled his gun upon the said Dick Wilkins, and demanded of him to drop the money; that thereupon the deceased, Miles Wilkins, stepped towards the defendant, and, throwing up his hands, said to the defendant not to shoot, whereupon the defendant leveled the gun upon the said Miles Wilkins, and fired it, killing him instantly. The testimony for the defendant was in conflict with that of the state, and tended to show that, at the time of the firing of the gun by the defendant, the said Miles Wilkins was advancing upon the defendant with a knife drawn, the defendant demanding of him to stop, and not to come closer; and that when within three or four feet of defendant, with his knife still drawn, the defendant fired the fatal shot. Upon the examination of Dick Wilkins, the brother of the deceased, the witness produced a coat that he testified the deceased had on when he was shot; and he pointed out a rent in the cuff of the left sleeve, and a hole, about an inch in diameter, through the left lapel, and said that this rent and the hole in the lapel were caused by the shot that killed the deceased. To the introduction of this coat, and the testimony of the witness concerning it, the defendant objected, upon the ground that it was illegal, immaterial, irrelevant, and incompetent evidence. The court overruled the objection, and the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The jury must be convinced by the evidence, beyond all reasonable doubt, and to a moral certainty, that defendant intentionally provoked the assault made by deceased, if they find such assault was made, before the defendant can lose the right of self-defense." (2) "The jury must be convinced by the evidence, beyond all reasonable doubt, and to a moral certainty, that, at the time of the shooting by the defendant, that there was no reasonable appearance of danger of great bodily harm to defendant at the hands of deceased, or that defendant could have retreated without increasing the danger to his life, or they must find defendant not guilty." (3) "The court charges the jury that if they...