Franklin v. State

• Decision Date: 18 January 1906
• Citation: 145 Ala. 669,39 So. 979
• Parties: FRANKLIN v. STATE.
• Court: Alabama Supreme Court

39 So. 979

145 Ala. 669

FRANKLIN v. STATE.

Supreme Court of Alabama

January 18, 1906

Appeal from Circuit Court, Clarke County; J. T. Lackland, Judge.

"Not officially reported."

Ben Franklin was indicted jointly with Dick Walker for murder in the first degree, was tried alone, and convicted of murder in the second degree, and appeals. Affirmed.

The solicitor introduced R. G. Allen, who testified that he was sheriff of Clarke county, and while he was bringing the defendant from Hattiesburg, Miss., to Clarke county, while on the train, he said to the defendant that there was no use denying that he was Ben Franklin, and that during the conversation defendant cried. The defendant objected to this statement and moved to exclude it.

The defendant requested the following charges in writing, which were refused by the court:

"(1) The court charges the jury that unless they believe from the evidence that both defendant, Ben Franklin and Dick Walker, participated in the shooting of the deceased, they must find the defendant not guilty.

"(2) The court charges the jury that unless they believe from the evidence that the defendant Dick Walker participated in the shooting of the deceased that caused his death, or procured Ben Franklin to do the shooting that caused deceased death, then you must find the defendant not guilty.

"(3) The court charges the jury that, if they believe from the evidence that the defendant Walker had nothing to do with the killing, then they must find the defendant not guilty."

"(5) The court charges the jury that before they can convict the defendant, that they must believe from the evidence that the act was committed willfully, deliberately, maliciously and premeditatedly and that all of these elements concur and exist.

"(6) The court charges the jury that, unless they believe from the evidence that the defendant Dick Walker counseled, procured, aided, or abetted in the commission of the offense, then they must find the defendant not guilty.

"(7) The court charges the jury that if they believe from the evidence that the defendant Ben Franklin shot and killed the deceased of his own accord, and without the assistance, aid, or co-operation in any manner of the defendant Dick Walker, they must find the defendant Ben Franklin not guilty.

"(8) The court charges the jury that unless they believe that the evidence offered by the sate in this trial is sufficient to convict the defendant Dick Walker, had he been tried jointly with the defendant Ben Franklin, then they must find the defendant Ben Franklin not guilty.

"(9) The court charges the jury that unless the evidence offered by the state is sufficient to convict the defendant Dick Walker, then they must find the defendant not guilty.

"(10) The court charges the jury that if they believe from the evidence that the deceased assaulted the defendant with an axe, and at the time of the assault the defendant had not assaulted the deceased or acted in such a manner as to lead a reasonable man to believe that he was in danger of life or limb, then the defendant was not at fault in bringing on the difficulty, and you cannot find the defendant guilty, unless you further find from the evidence that the defendant could have afterwards withdrawn from the fight without increasing his peril."

"(14) The court charges the jury that, unless you believe from the evidence that the defendant commenced the difficulty with the intent to kill the deceased, then you cannot find the defendant guilty as charged in the indictment."

The court in its oral charge, which was reduced to writing at the request of the defendant, said: "The deliberation and premeditation necessary to constitute this offense need not exist for any stated period of time. It is sufficient if they are shown to exist. They simply mean that the slayer must intend before the blow is delivered, though it be only for an instant of time before, that he will strike at the time he does strike and that death will be the result of the blow. In other words, if the slayer had any time to think before the act, and did think, and struck the blow as the result of an intention to kill, produced by even momentary operation of the mind, and death ensued as a result thereof, that would be a deliberate and premeditated killing under the statute, and would be murder in the first degree, provided the other elements of the crime existed at the time."

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

The action of the lower court in forcing a trial without Amanda Wixey was without error, but, even if erroneous, she afterwards appeared and testified for defendant, which would cure the error.

When one charged with crime gives a false explanation of any suspicious fact or circumstance, tending to connect him with the offense, it is a circumstance proper to be submitted to the jury. Walker v. State, 49 Ala. 398. There was, therefore, no error in admitting the evidence of Oscar Cassity as to the conversation between him and the defendant in the jail in Mississippi, touching the indentity of defendant, for which purpose alone it was admitted. For like reasons, what occurred between R. G. Allen and defendant, on the train from Mississippi to Clarke county was not improperly admitted.

The question to defendant by...