Francis v. State

• Decision Date: 11 June 1914
• Docket Number: 704
• Citation: 65 So. 969,188 Ala. 39
• Parties: FRANCIS v. STATE.
• Court: Alabama Supreme Court

65 So. 969

188 Ala. 39

FRANCIS v. STATE.

No. 704

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.

Jack Francis was convicted of murder, and he appeals.Affirmed.

The following charge was refused to defendant:

(1) I charge you that defendant, having been employed as night watchman at the place where the difficulty occurred was under no obligation to retreat or run away from his place of business, but that he had a right to stand his ground and resist an attack made on him, if any were made.

Charge A given is as follows:

Defendant in this case was under no legal obligations to retreat from the place where the difficulty occurred, but he had a right to stand his ground and repel an attack, if any such attack was made.

(2) If you believe from all the evidence in this case that defendant had or used more force than was necessary to repel or drive away deceased, but that defendant had the honest and bona fide belief that his life was in danger, or that there was imminent danger of suffering great bodily harm at the hands of deceased and he shot deceased, if defendant was free from fault in provoking the difficulty, then you cannot find defendant guilty of murder.

(3) I charge you that the danger need not be actual, but if the circumstances be such as to create in the mind of defendant the reasonable belief that he is in imminent danger of suffering great bodily harm or of losing his life, he has the right to act on the appearance of things and shoot his assailant in order to save his own life.And this is true even though as a matter of fact no harm was intended or meant by deceased.

(4) If you believe from all the evidence in this case that if defendant was scared and greatly frightened when he fired the shot, and when he did so he was reasonably impressed with the bona fide belief from the circumstances in the case that he must do something to protect his life and fired the shot without intending to kill deceased, but to protect himself you cannot find him guilty of murder in any degree.

(5) If you find from all the evidence in this case that defendant did not provoke the difficulty which resulted in the death of Summerfield Hall, and that he did not have to retreat from the place where the difficulty occurred, and if you further find from the evidence in the case that when he fired the shot the circumstances were such as to create in his mind the reasonable belief that he was in danger of losing his life or of suffering great bodily harm, you should acquit.

W.W Malone, of Athens, for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

GARDNER J.

The defendant was convicted of murder in the first degree, and his punishment fixed at life imprisonment.The trial was had on October 3, 1913.

It is first insisted by counsel for appellant that there was reversible error in the admission in evidence by the trial court of the testimony of one O.L. Turley, taken on preliminary trial; said witness being absent on the final trial.

The witness Rankin, one of the counsel for the state, was permitted to testify, without objection, that he examined O.L. Turley as a witness on preliminary trial of this case; that he had a conversation with said Turley in which he said his residence was in Nebraska and his address Freemont, Neb.; that witness told him he would let him know what day to come when the case was set for trial; that said Turley told him he was going to Nebraska; and that he left Athens the next day.It was also proved by witness Strane that he was at the station the next day after the preliminary trial and saw the witness Turley get on the train going north, and that he said he was going to his home in Nebraska; that he has not been seen in Athens or in the county since that time.

The witness Rankin identified a letter received by him purporting to have been signed by said O.L. Turley, and also the envelope in which it was received.The envelope was postmarked "Freemont, Neb., Aug. 30, 11:30 a.m 1913."The letter was headed and dated "Freemont, Neb., Aug. 29-13."It purported to be signed by O.L. Turley, and was addressed to J.C. Rankin, attorney at law, Athens, Ala., and its contents clearly indicated that the said Turley would not attend the trial unless furnished transportation by the state.On the back of the envelope were the words: "From J.W. Turley, Freemont, Nebr."The defendant's first objection to the letter being admitted in evidence was upon the specific ground that the envelope purports to come from one J.W. Turley, and the letter purports, to be signed by O.L. Turley.We think it clear that this was not sufficient to exclude the letter from evidence.To a question asked witness Rankin as to identification of the letter there was objection upon specific...