Fallin v. State

• Decision Date: 24 January 1889
• Parties: FALLIN v. STATE.
• Court: Alabama Supreme Court

5 So. 423

86 Ala. 13

FALLIN v. STATE.

Supreme Court of Alabama

January 24, 1889

Appeal from circuit court, Elmore county; JAMES R. DOWDELL, Judge.

Jesse T. Fallin was indicted for the murder of Ross Powell "by striking him with a hoe," and was convicted of murder in the second degree. On appeal, the conviction was reversed, and the cause remanded. 3 South. Rep. 525. On the trial, defendant applied for a change of venue, and excepted to its refusal, and he also excepted to a charge given by the court ex mero motu, and to the refusal of a charge asked by him in writing. The charge given was in these words "If the jury believe from the evidence that the defendant could have safely retreated, or could have safely disarmed the deceased without danger to himself, then he is not guiltless of the homicide." The charge asked and refused was in these words: "If the jury believe from the evidence that the defendant did not bring on the difficulty, but was talking to the deceased in a quiet and orderly manner, and the deceased called him a 'blamed lying son of a bitch,' and placed his hand upon or in the direction of his pocket in such a manner as to indicate to a reasonable mind that his purpose was to draw a weapon, then the defendant was authorized to anticipate and strike first and it makes no difference if it should turn out that the deceased was in fact unarmed, as the law of self-preservation does not require that the defendant should wait until the weapon was drawn, but he had a right to act upon the reasonable appearance of things."

W. P. Gaddis, T. L. Bulger, and H. C. Tompkins, for appellant.

T. N. McClellan, Atty. Gen., for the State.

CLOPTON J.

The first error urged relates to the refusal of the court to grant a change of venue. By the statute, a person charged with an indictable offense, who desires to have his trial removed to another county, must specifically set forth, under oath, the reason why he cannot have a fair and impartial trial in the county in which the indictment is found. The application must be made as early as practicable before the trial, but may be made, after conviction, on a new trial being granted. Code, 1886, § 4485. The homicide was committed in May, 1887. The indictment was returned and filed in court, and the defendant was tried, in August of the same year. On this trial he was convicted of murder in the second degree. On appeal the judgment was reversed, in January, 1888. 3 South. Rep. 525. At the February term, 1888, the case was continued at the instance of the defendant. On August 7, 1888, the defendant being present in court, the 15th day of the same month was set for his trial. On the latter day, after the state had announced "ready for trial," application for the change of venue was made for the first time. The reason assigned for the delay is that the defendant was confined in jail until May 3, 1888, and had been unable to secure the information upon which the application is founded.

It is manifest that all the material facts set forth in the affidavit of the defendant in support of the application transpired, if not before his first conviction, certainly before February, 1888, except the election of Powell, a brother of the deceased, and of Parker, who, it is alleged prepared and circulated petitions...