Evans v. State

• Decision Date: 06 February 1896
• Parties: EVANS v. STATE.
• Court: Alabama Supreme Court

19 So. 535

109 Ala. 11

EVANS v. STATE.

Supreme Court of Alabama

February 6, 1896

Appeal from circuit court, Cleburne county; D. C. Blackwell, Special Judge.

Henry Evans was convicted of manslaughter, and appeals. Reversed.

The appellant, Henry Evans, was jointly indicted with Ben Crawford for the murder of A. M. Palmer. The indictment charged murder in the second degree. Upon motion of the defendant Evans, a severance was had, and the present defendant was put upon his trial. The testimony for the state tended to show that on the night of the killing of the said A. M. Palmer, the defendant, Ben Crawford and Henry Boman went to the house of Alice Palmer, daughter-in-law of the deceased; that there was in the house at the time, Alice Palmer and her children, Wright Williamson and the deceased that prior to their going to the house Ben Crawford had, in the presence of the defendant, asked a person who was a witness for the state, to come with them and have some fun that upon going to the house, they immediately went into the room where the deceased was, and upon deceased's asking them for what they came to the house, they replied, that that was their business. That upon deceased saying to them "State your business, or get out," they covered him with their pistols, which they had in their hands; and one of them fired. One of the witnesses for the state testified that the pistol that was shot was in the hands of the defendant. The evidence for the state further tended to show that the defendant and Ben Crawford, after firing the pistol, grabbed Wright Williamson, and dragging him out of the house, told him that his time was not very long, and that they would "mob him before day." There was other evidence that during the scuffle with Williamson another shot was fired at the deceased, and that a few minutes afterwards the defendant, Ben Crawford and the defendant Henry Boman left. From the effects of the wound from the pistol shot fired at the time the defendant and Crawford and Boman were at the house, the deceased died in a few moments after they left. The testimony for the defendant tended to show that the defendant, Ben Crawford and Henry Boman did not conspire together to go to the house of Alice Palmer to do either the deceased, Alice Palmer or Wright Williamson, or any one else any harm or violence. That Ben Crawford went there for the purpose of collecting a debt from Wright Williamson, who he understood was going to leave the county; that Henry Boman had business with the deceased, and they asked the defendant to join them, and that the defendant went by his room, got his pistol in order to carry it to the deceased, who was a blacksmith, to have it fixed; that upon entering the house the deceased cursing them raised a stick in his hand as if to strike; that one of the three remonstrated with him, and that during the dispute which ensued a shot was fired from the back room, from which room Wright Williamson afterwards came. That the deceased thereupon got his double-barrel shotgun and as the defendants, Crawford and Boman were leaving, he pointed the gun at Crawford and snapped it twice; that as he tried to shoot the gun a third time Crawford shot the deceased.

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: (2) "Unless the jury believe from the evidence that defendant and Crawford and Boman had formed a conspiracy to go to the house of Alice Palmer for the purpose of doing some violence to Wright Williamson or some other person, and that the killing was the natural result of such conspiracy, or that defendant did some act to aid or encourage the killing, and that the killing was done with malice aforethought, the defendant cannot be guilty of the charge of murder." (25) "If the jury find from the evidence that after defendant, Crawford and Boman went into the house of Alice Palmer a difficulty there arose between them or either of them and old man Palmer, and if they further find that defendant and Crawford in good faith abandoned the conflict and were withdrawing from the house and that old man Palmer pursued them and presented his gun at Crawford in such close proximity as to render retreat hazardous, then Crawford had the right to use such force as was necessary to free himself from the danger even to the taking of old man Palmer's life, and if you find the killing occurred under such circumstances as these, you should find the defendant not guilty." (27) "If the defendant neither shot old man Palmer nor instigated or consented to it, nor knew when it was done, nor did not confer with Crawford nor any one else to do any unlawful act in the prosecution of which the death of old man Palmer was reasonably in contemplation, and defendant, though present, was not aiding and abetting Crawford to shoot old man Palmer, then the jury must find the defendant not guilty." (30) "The court charges the jury that if they believe from the evidence that Boman, Crawford and Evans went to the house of Alice Palmer on the night the killing is said to have been done, and an offense was committed by one of them from causes having no connection with the common object for which they went there, the responsibility for such offense rests solely on the actual perpetrator of the crime, and the jury cannot find the defendant guilty simply because he happened to be present at the time the offense was committed." (31) "If the jury believe the evidence in this case they must find the defendant not guilty." (35) "If there was a conspiracy to take Wright Williamson out of the Palmer house and the killing of Palmer was not incidental to that common purpose, nor probably in contemplation of the parties, and defendant did not shoot Palmer but Crawford of his own malice shot and killed Palmer, then the jury must find defendant not guilty." (36) "Before the defendant can be convicted in this case, he himself must have entertained the intent unlawfully to kill old man Palmer, or to do him bodily harm or he must have known that Crawford entertained such intent, and if defendant did not shoot old man Palmer, and had no intent to injure old man Palmer in any way, and not that Crawford entertained the intent to injure old man Palmer, then the jury must find the defendant not guilty." (39) "The indictment in this case charges that defendant unlawfully and with malice aforethought, but without premeditation, killed Palmer by shooting him with a pistol, and the court charges the jury that if defendant did not shoot at all on the night of the difficulty, or if Crawford and not defendant shot and killed old man Palmer, then the defendant cannot be found guilty as charged, unless the state has shown by the evidence beyond a reasonable doubt that defendant himself entertained the intent unlawfully and with malice aforethought, but without premeditation, to kill old man Palmer, or that Crawford entertained such intent and shot Palmer in pursuance thereof, and that defendant knew that he entertained it and aided or abetted him therein." (45) "The jury are not required to find defendant guilty of murder in the second degree or of manslaughter in the first degree, or of manslaughter in the second degree. They may find him not guilty, and it is their duty to find him not guilty, if under the evidence there is a probability that he did not aid or abet Crawford in the killing." (47) "If the shooting of Palmer was a departure from the common design and was done by Crawford of his own malice, then the defendant is not guilty." (48) "If Palmer was killed by Crawford not in furtherance of the common design, or in carrying it out, but of his own malice, then the defendant is not guilty." (54) "The court charges the jury that the positive testimony of any witness who swears he saw an act, is entitled to more weight than the testimony of a witness who testifies negatively that if the act occurred he did not see it." The defendant was convicted of manslaughter in the first degree, and from the judgment of conviction he brings the present appeal.

Merrill & Bridges and R. B. Kelly, for appellant.

W. C. Fitts, Atty. Gen., for the State.

HARALSON J.

Section 4316 of the Code provides, that if for any cause, no petit jury is summoned for any week of the term of the court, the court may, by an order entered on the minutes, direct the sheriff forthwith to summon the requisite number to serve as petit jurors, etc. Section 4306 provides for the drawing of petit jurors by the officers appointed for the purpose, for each regular term of the court, "allowing thirty persons for each week of the term prescribed by law." Reference is manifestly made in said section 4316, touching "the requisite number to serve as petit jurors," to the provisions of said section 4306. Under the new jury law (Acts 1886-87, p. 151; Code, p. 131), § 4, the jury commissioners are required to draw the petit juries for each week of the term, "allowing not more than 36, nor less than 30 persons for each week of the term prescribed by law." It seems that the term of the circuit court of said county of Cleburne, had been extended by law to three weeks, since the last session of the jury commissioners of said county, the length of the term being two weeks at that time; and no jury having been drawn for the third week, the court by an order spread on the minutes, directed the sheriff of the county, to summon forthwith 24 persons to serve as petit jurors during said third week of the term of said court. It appears there is no provision made in said statute of 1886-87, for drawing a petit jury in a case such as we have before us. Section 4316 of the Code, making provision...