Fuller v. State

• Decision Date: 16 June 1897
• Citation: 22 So. 491,115 Ala. 61
• Parties: FULLER v. STATE.
• Court: Alabama Supreme Court

22 So. 491

115 Ala. 61

FULLER v. STATE.

Supreme Court of Alabama

June 16, 1897

Appeal from circuit court, Cleburne county; George E. Brewer, Judge.

Levi J Fuller was convicted of murder, and appeals. Reversed.

The appellant was indicted and tried for the murder of Thomas Henry, was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for 60 years. The tendencies of the evidence are sufficiently stated in the opinion. The charge of the court, to which exception was reserved, is copied in the opinion. The defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (13) "If the jury believe from the evidence in this case that deceased was attempting to take the mule away from defendant's work, and was attempting to unloose the mule from defendant's machine for the purpose of taking it away from defendant's work against the express objection of defendant, and that defendant undertook to prevent deceased from unloosing the mule from the said machine by the use of reasonable force and did not use or attempt to use any unreasonable force in so doing, and that deceased turned upon defendant and attempted to cut him with a knife, in such close proximity as to render retreat hazardous, and it reasonably appeared to defendant that he was in danger of his life or of great bodily harm at the hands of deceased, then defendant had a right to strike in defense of himself, even to the taking of the life of his assailant, if necessary to free himself from danger." (14) "The court charges the jury that the deceased had no right, under the law, to take the mule from defendant's work without defendant's consent, and against defendant's direction; and if the jury believe from all the evidence in this case that the deceased did attempt so to take the mule away from defendant's work then the deceased was a trespasser, and defendant had a right to use a reasonable amount of force to prevent deceased from so taking the mule; and if the jury believe from all the evidence that all defendant did was to use a reasonable amount of force, and that then the deceased turned and attempted to cut defendant with his knife, and that defendant could not then safely retreat, and that the defendant struck the fatal blow under the circumstances, then you should find the defendant not guilty." (18) "If the jury believe from the evidence, after a full and careful consideration of all the evidence in the case, that the defendant had the mule hired to work to his machine, and that he had deceased employed to drive the mule, and that the mule was attached to and pulling the machine, and that the defendant had on the morning of the difficulty discharged deceased from his employment, and that after his discharge he attempted to unloose the mule from the machine for the purpose of taking the mule away, against defendant's objection, and that deceased refused to desist when so directed by defendant, then defendant had the right to use sufficient force to prevent deceased from unloosing and taking away the mule; and if, in so doing, defendant used only a reasonable amount of force against deceased, and deceased then turned and attacked defendant with a deadly weapon, in such close proximity as to render retreat hazardous, or apparently so, to a reasonable mind, and was attempting to use such weapon upon defendant, then the defendant had a right to strike in defense of himself, even to the taking of the life of his adversary, if necessary to free himself from danger." (29) "If the jury believe from the evidence that defendant discharged deceased from his employment on the morning of the homicide, and that deceased then left the works of defendant, and afterwards returned to the works of defendant, and began to take the mule which defendant was working loose from the machine, and was ordered by defendant to desist, and refused to desist when so ordered, then defendant had the right to use the force necessary to prevent the deceased from taking away the mule, provided he used no unreasonable force in so doing; and if, while attempting to prevent deceased from the use of such reasonable force,-from taking away the mule,-the deceased turned and attempted to cut defendant with a knife, and in such close proximity as to have rendered it apparently hazardous for defendant...