Fallin v. State

• Decision Date: 23 January 1888
• Citation: 83 Ala. 5,3 So. 525
• Parties: FALLIN v. STATE.
• Court: Alabama Supreme Court

3 So. 525

83 Ala. 5

FALLIN v. STATE.

Supreme Court of Alabama

January 23, 1888

Appeal from circuit court, Elmore county; JOHN MOORE, Judge.

Indictment for murder. The defendant in this case, Jesse T. Fallin, was indicted for the murder of Ross Powell, by striking him with a hoe; was tried on issue joined on the plea of not guilty convicted of murder in the second degree, and sentenced to the penitentiary for a term of 10 years. On the trial he reserved a bill of exceptions, which shows all the points here presented for revision. The homicide was committed, as shown by the evidence adduced on the trial, on Saturday evening, May 7, 1887, in a field belonging to the defendant or then cultivated by him, in which he and his two sons were plowing; and the deceased had gone there to ask or demand payment of an account, which the defendant insisted had been paid. The parties had been sitting on a root of a tree in the field, but had risen to their feet when angry words commenced. But one blow was struck by the defendant, which fractured the skull of the deceased; and he died from the effects of the blow, on the Monday following. The defendant's evidence tended to show that when the fatal blow was struck the deceased had thrown his hand behind him in position to draw a weapon; but no weapon was found on him when the persons arrived. The defendant sent a messenger to the house of the deceased, where he lived with his father and mother, less than a mile from the field where the killing occurred; and when the mother of the deceased arrived, she found the defendant supporting her son's head in his lap or on his knees. The defendant stated, in answer to questions as to what he had done, and why he did it, "He sassed me, and I flew into passion, and struck him." The deceased was "about twenty-one years old, and weighed 115 or 120 lbs., while the defendant was about forty-five years old, and weighed about 150 or 160 lbs.;" and it was proved that up to the time of the difficulty they had been on friendly terms. Joe Fallin, a son of the defendant who was examined as a witness for him, "was asked, if he had not testified before J. R. BROOKS, a justice of the peace, on preliminary examination of himself and of his brother Charles, when arrested and charged with the murder of said Ross Powell, that his father struck said Ross Powell a left-handed blow; and answered that he had so testified, but that he had afterwards gone back and looked at the ground, and he now says that the blow was right-handed. The defendant offered to show by said witness that afterwards, on preliminary examination of the defendant before the probate judge, he testified that on said examination before the justice of the peace he swore that it was a left-handed blow, but that he was mistaken in that statement, and that the blow, as he then testified, was right-handed. The state objected to this evidence, and the court sustained the objection; to which ruling the defendant thereupon excepted." The defendant requested the following charges to the jury, which were in writing, and duly excepted to their refusal: (1) "Unless the jury believe from the evidence that the defendant, with malice aforethought, willfully and premeditatedly...