Fuller v. State

• Decision Date: 29 May 1917
• Docket Number: 6 Div. 330
• Citation: 75 So. 879,16 Ala.App. 163
• Parties: FULLER v. STATE.
• Court: Alabama Court of Appeals

75 So. 879

16 Ala.App. 163

FULLER v. STATE.

6 Div. 330

Court of Appeals of Alabama

May 29, 1917

On Rehearing, June 15, 1917

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Harrison Fuller was convicted of murder in the second degree, and he appeals. Affirmed.

The following charges were refused to defendant:

(21) Evidence of previous good character may along be sufficient to raise a reasonable doubt, when considered along with all the other evidence in the case.

(22) Before you can find this defendant of murder in the first degree, you must be satisfied beyond a reasonable doubt and to a moral certainty, that defendant unlawfully and with malice aforethought killed the deceased. Now, gentlemen "malice" means hate, a premeditation. "Aforethought" meaning that he recklessly and without regard to human life, without impending danger either apparent or action. "Willful" means that it was unlawful, and without provocation or disregard for human life, with a wicked design to take the life of his adversary. Yet the court charges you that, unless all these elements have been proven to your satisfaction by the state, beyond a reasonable doubt, you cannot convict defendant in the first degree, no matter how strong the circumstances or how suspicious the surroundings are.

(23) The court charges that, if they believe from the evidence that Bud Fuller towards the defendant to do him great bodily harm might be anticipated by defendant, and he was justifiable in acting quicker and more readily in defending himself than if Bud Fuller had not been such bad character.

(23 1/2) Unless you believe beyond a reasonable doubt, and to a moral certainty, that defendant provoked and brought on the difficulty, and that he could not have escaped without an honest belief that by attempting to escape he would increase his peril by so doing, and that the circumstances were such at the time the fatal shot was fired, or blow struck, that you could not say beyond a reasonable doubt, and to a moral certainty, that defendant did not entertain an honest belief that his life was in danger of being taken by deceased, or that he would receive great bodily harm, then, gentlemen, it would be your duty to find defendant not guilty.

(24) The burden is on the state first to prove that defendant was at fault in bringing on the difficulty, and that defendant took the life of deceased with a deadly weapon, and that defendant could not have reasonably escaped, without increasing his peril, and, if the state has not proven this beyond a reasonable doubt, then it would be your duty to find defendant not guilty.

(26) I charge you that when a killing is done in any sudden rencounter or affray, caused by the assailant with the use of a deadly weapon which was concealed before the commencement of the fight or difficulty, deceased having no deadly weapon drawn, such killing is murder if the first degree, and, if deceased at the commencement of the affray had a deadly weapon drawn, it would not be murder in the second degree.

(27) In weighing the evidence of confessions, you should weigh the same with great caution for the following reasons First, because it is so hard for one person to repeat the exact words of another; second, because it is ofttimes difficult to remember the words spoken by another, especially after a lapse of 10 or 12 months; and, third, ofttimes the statements are testified to by friends or relatives of deceased, which might be biased to defendant.

(28) If defendant has proven to your satisfaction that he is a man of good character for quietude and peace, taking this in connection with the other evidence in the case, may be sufficient to generate a reasonable doubt in your mind of his guilt, which would entitle defendant to an acquittal, but for said good character you would not have a reasonable doubt.

(29) Statements made in the nature of confession made by defendant should be scrutinized by you carefully for this reason: That it is so hard for one person to repeat the exact words of another, and because words spoken by a third party are susceptible of misinterpretation and misunderstanding.

(30) After considering all the evidence in this case, before you are authorized to convict defendant, you must first believe that defendant was not free from fault in bringing on the difficulty, and that he could not have retreated without increasing his peril, or that the conditions were such as would impress a reasonably prudent man that there was great danger of defendant losing his life, or receiving great bodily harm by retreating, and that defendant was in actual danger, or the appearance of actual danger was such as to leave him to the honest belief that there was actual danger at the time the fatal shot was fired, or the fatal blow struck; all of the above, before you are authorized to convict defendant, you must be satisfied from the evidence beyond a reasonable doubt.

M.L Leith and Norman Gunn, both of Jasper, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the...