Fleming v. State

• Citation: 150 Ala. 19,43 So. 219
• Parties: FLEMING v. STATE.
• Decision Date: 02 March 1907
• Court: Supreme Court of Alabama

43 So. 219

150 Ala. 19

FLEMING v. STATE.

Supreme Court of Alabama

March 2, 1907

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Will Fleming was convicted of homicide, and he appeals. Reversed and remanded.

The defendant was indicted for killing Jule Tires, with malice aforethought, by shooting him with a pistol. The evidence for the prosecution tended to show that the killing was done at the house of the witness Roland in West Anniston and about 10 o'clock at night. The deceased was at the house, and the defendant came there about 20 minutes before the shooting took place. The witness said he was attracted by an argument or conversation between defendant and deceased, in which defendant said: "Jule, I would not hurt a hair on your head. You know you and me has been buddies for five or six years." Witness then testified that he went on in the house, and when he got in he heard defendant say: "I will kill you, God damn you." Witness said: "Will what is the matter?" The defendant moved to exclude the statement, "Will, what is the matter?" but the court declined to do so, and defendant excepted. Witness then testified: "I heard Will say, 'I'll kill you,' and witness said 'Will, what are you doing?' and about that time he made a shot." Defendant moved to exclude the statement, "Will, what are you doing?" but the court refused to do so. Continuing his testimony, witness said: "When the defendant said he would kill the deceased, defendant was standing close to the door of the veranda. I was going into the door, and was just inside of the door, and the deceased was right over near the table on opposite side of the room near the ice cream freezer." The state then asked the witness: "What was Jule doing?" Witness answered "Going into the ice cream freezer." Defendant moved the court to exclude this statement of the witness, and the court declined, and the defendant excepted. Fleming shot the deceased just back of the left shoulder, the ball coming out near the right nipple, from which defendant died in about half an hour. Another witness, testifying for the prosecution, stated that there had been some shooting at Cox's house just before defendant came down to Roland's house, and the defendant, on the cross, asked him, "Who turned out the lights up there at that house?" The court sustained an objection to the question. The defendant then asked this witness, "Were you and Jule and Will up at Cox's house together a short while prior to the time that the shooting occurred at Roland's house?" The court sustained an objection to the question. The defendant then asked this witness "Did not you hear the deceased, when he turned out the lights at Cox's house, say that he would kill Will Fleming or make Will kill him?" The court sustained an objection to the question. The defendant asked the witness Taylor: "If defendant offered to shake hands, say so." Witness answered: "Yes, sir; he offered to shake the deceased's hand, and I said: 'Come on, now come on!' " The state moved to exclude the testimony as to what witness said to deceased, and the court granted the motion.

At the conclusion of the testimony the defendant requested the following charges, which the court refused to give: "(1) The court charges the jury that you should not capriciously reject the testimony of Howard Taylor, but that if you can reconcile the testimony in this case, so as to make Howard Taylor and the other witnesses speak the truth, you should do so. (2) The court charges the jury that, if there is a probability of the defendant's innocence, you should acquit him. (3) The court charges the jury that the written statement of the witnesses McCombs and Ganey Slaughter should be considered just as if these witnesses were present and had testified on the trial. [The witness Slaughter was shown to have died since the preliminary trial, at which time he testified and his testimony was taken down in writing. After proof of his death and identification of his testimony, the written testimony was admitted. A showing was made for the witness McCombs, who was absent]. (4) The court charges the jury that if the defendant did not provoke or encourage the difficulty, but was approached by the deceased in an angry and insulting manner, and the deceased acted towards the defendant in such a manner as to indicate to a reasonable man that it was his purpose to strike the defendant with a soda-water bottle, the defendant was authorized to anticipate him and shoot. (5) The court charges the jury that if the defendant did not provoke or bring on the difficulty, but was approached by the deceased in an angry and insulting manner and the deceased advanced towards the defendant, with one hand containing a sodawater bottle, raised in such manner as to indicate to a reasonable man that it was his purpose to strike the defendant with said soda-water bottle, then the defendant is authorized to anticipate him and shoot first. (6) The court charges the jury that the danger that would excuse one for killing another need not be real or actual. It may now be known that all the appearances of danger were false, and that Jule Tires never intended to do defendant any harm, and that he...