Ferguson v. State

• Decision Date: 21 July 1904
• Citation: 141 Ala. 20,37 So. 448
• Parties: FERGUSON v. STATE.
• Court: Alabama Supreme Court

37 So. 448

141 Ala. 20

FERGUSON v. STATE.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, St. Clair County; John Pelham, Judge.

Prosecution of Buck Ferguson for murder. He was convicted of manslaughter, and appeals. Reversed.

The appellant was indicted for the murder of Will Andrews. He was tried and convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for two years. From this judgment he appealed to the Supreme Court, where said judgment was reversed, and the cause was remanded. 32 So. 760, 92 Am. St. Rep. 17. Upon the second trial, from the judgment in which the present appeal is prosecuted, he pleaded his former conviction of manslaughter as an acquittal of murder in the first and second degree, which plea was confessed by the state. On the trial he was found guilty of manslaughter in the first degree, and was sentenced to imprisonment in the penitentiary for five years. There was evidence that there was a conspiracy between the defendant and his son John Ferguson to kill Will Andrews.

The defendant requested the court to give to the jury each of the following written charges, and separately excepted to the court's refusal to give said charges as asked: "(1) If the jury believe all the evidence in this case, they must find the defendant not guilty." "(3) The court charges the jury that there is no evidence in this case showing that this defendant in any way conspired with John Ferguson to take the life of Will Andrews, or do him other bodily harm, but that the undisputed evidence in the case shows that there was no such conspiracy between this defendant and John Ferguson." "(9) The court charges the jury that the offense with which the defendant is now indicted and on trial in this case is manslaughter in the first degree; that manslaughter in the first degree is an unlawful killing, as the result of passion suddenly engendered by present provocation, and that, in law, there could be no conspiracy to commit such offense; and that, in law, there could have been no aiding or abetting John Ferguson in the commission of said offense by defendant unless defendant was present and so aiding or abetting at the time of the killing. (10) The court charges the jury that the jury cannot find the defendant guilty of any offense in this case because of defendant's having conspired with John Ferguson to take the life of Will Andrews, or do him other bodily harm, or because of defendant's having aided or abetted John Ferguson in the killing, so long as any one juror may have a reasonable doubt as to whether or not this defendant ever did so conspire with said John Ferguson, or aid and abet him in such killing. (11) If the jury find from the evidence that all the defendant did toward the killing of Will Andrews was to on one occasion say to the witness Talbert, and about a week before the killing, that 'we were expecting Will Andrews down here, and wanted to be ready for him,' and on another occasion say to the witness A O. Washburn, in the hearing of witness Mrs. Susie Washburn that he had tried to keep the trouble down between John and Will, and had thought it down, but the old man Andrews had come down to the store drunk, with a gun, and had been throwing off on John, and had got John stirred up again, and had sent for Will to come down with his gun; that, if they came back again, he did not know whether he could keep him down; that he would like for Washburn to see Will, and see if he could not get it settled; that, if they did start it up again, and John got into trouble, he had 200 or 300 acres of land, and would spend it and everything else he had to get John out of the trouble; that, if John should kill one of the Andrewses, he did not think any more attention would be paid to it than the killing of a dog; that John Ferguson was not present at either of said conversations, and knew nothing of them; that the making use of such remarks was all defendant did or said toward the killing--then, under all the evidence in this case, defendant would not be guilty, and the jury should acquit him. (12) If the jury believe from the evidence in this case, beyond all reasonable doubt, that John Ferguson killed Will Andrews by shooting him with a gun; that such killing was done by John Ferguson with malice aforethought and not in sudden passion engendered by present provocation--then the jury must acquit this defendant, even though the jury may be satisfied from all the evidence beyond all reasonable doubt, that prior to such killing this defendant conspired with John Ferguson to so kill said Andrews, or that this defendant actually aided and abetted said John Ferguson in such killing of said Will Andrews. (13) The court charges the jury that if they believe from the evidence that the fatal shot which took the life of Will Andrews was fired by John Ferguson, and without the knowledge, connivance, or assent of this defendant, then the jury must find this defendant not guilty. (14) If the jury believe from the evidence in this case that the killing of Will Andrews by John Ferguson was murder, and that this defendant was an accessory to such...