Fitzgerald v. State

• Decision Date: 24 November 1896
• Citation: 20 So. 966,112 Ala. 34
• Parties: FITZGERALD v. STATE.
• Court: Alabama Supreme Court

20 So. 966

112 Ala. 34

FITZGERALD v. STATE.

Supreme Court of Alabama

November 24, 1896

Appeal from city court of Mobile; O. J. Semmes, Judge.

The appellant, John Fitzgerald, was tried under an indictment charging him with murder in the first degree for killing one William Case, and was convicted of manslaughter in the second degree, and sentenced to imprisonment in the county jail for six months, and appeals. Reversed.

Upon the trial of the cause, as is shown by the bill of exceptions, the evidence for the state tended to show that on the night of August 19, 1895, William Case, the deceased, in company with two friends, went into a barroom wherein the defendant, John Fitzgerald, was the barkeeper, and who was at the time, behind the bar; that, while the deceased and his friends were standing in front of the bar talking, the deceased commented on the defendant having two good-looking pistols lying on the back bar shelf; that thereupon the defendant said, "Yes; and I am a crackerjack with them," and picked up one of the pistols, and, pointing it at the deceased, fired, the ball striking the deceased in the forehead, from the effects of which wound the deceased died in December. The testimony for the defendant tended to show that he and deceased were the best of friends, and were frequently together; that at the time the deceased, with two other men, came into the barroom, and the deceased commented on the pistols lying on the back bar shelf, the defendant said, "Yes; they are crackerjacks," and picked up one of them; that he turned around, and was in the act of handling the pistol he picked up over the counter to the deceased, when the pistol fired, with the above effects. The defendant, as a witness in his own behalf, testified that he did not have his hand upon the trigger, and was not pointing it at the deceased, but was passing it over the counter towards him, when it was accidentally discharged.

During the examination of one Murray Richardson, a witness for the state, he testified that two days prior to the shooting he had carried a note for the defendant to a woman. The solicitor asked said witness the following question "When you came back, what did you tell Mr. Fitzgerald the defendant?" The defendant objected to this question on the ground that it was irrelevant and immaterial, but the court overruled the objection, and the defendant duly excepted. The witness answered: "He asked me if I brought an answer, and I told him I did not have any answer and he asked what she said, and I told him she said she didn't want any of his notes, and nothing to do with him; and then he asked if that damned little fellow Willie Case was up there, and I told him I didn't know; that I didn't go inside." The defendant moved the court to rule out and exclude this answer of the witness as irrelevant, illegal incompetent, and immaterial. The court overruled the motion, and defendant excepted to the ruling of the court.

On the cross-examination of a witness for the state, after he had testified to facts tending to impeach the testimony of Murray Richardson, the solicitor asked said witness several questions, eliciting from him that he was, at the time of the trial, employed at the same bar with the defendant, but at the time of the shooting was not in such employ. To each of these questions and answers thereto the defendant separately objected, and separately excepted to the court's overruling each of his several objections. There was other evidence introduced on the part of the defendant tending to impeach the testimony of Murray Richardson in reference to the remark which he testified defendant made about the deceased in connection with the woman to whom he sent the note. There was also evidence tending to show the good character of the defendant.

Upon the introduction of all the evidence, the court, in the general charge to the jury, instructed them, among other things, as follows: "Gentlemen of the Jury: If you should believe from the evidence, beyond a reasonable doubt that the defendant at the bar was behind the counter, and the pistol was lying there, and that Willie Case, whom it is alleged was killed, came up to the bar, and the defendant picked up that pistol, determined beforehand to kill Willie Case, and did shoot Willie Case with that pistol, intending to kill him with the pistol, Willie Case doing nothing, and he shot him without justification, mitigation, or excuse, and that was done in Mobile county, before the finding of the indictment, and that then Willie Case died from the effects of the shot before the finding of the indictment, then he (the defendant) would be guilty of murder in the first degree." To this portion of the court's general charge the defendant separately excepted, and also separately excepted to the following portion of the court's general charge: "Manslaughter in the second degree is where one person, in doing an unlawful act, which is not a felony, kills another one, not intending to kill him, or where one doing an unlawful act does it in such a careless way that death is the result of the carelessness of the party, although he did not intend actually to kill the party." The court also instructed the jury, in its general charge, among other things, as follows: "It is in two categories: First, that he is doing an unlawful act, and that...