Garrett v. State

Decision Date01 February 1893
Citation97 Ala. 18,14 So. 327
PartiesGARRETT v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Clay county; Leroy F. Box, Judge.

Henry Garrett was indicted for the murder of Montgomery Sims convicted of manslaughter in the first degree, and sentenced to five years' imprisonment in the penitentiary, and appeals. Reversed.

The state introduced testimony tending to show that there was a dispute between deceased and defendant about the settlement of a suit by Sims & Burke, in which firm deceased was a partner, against the defendant, in which a writ of garnishment had issued; and, in a conversation with Burke the latter abated some of the costs of the suit, when defendant said, "You are that much more of a d-n gentleman than I thought you were." This conversation was near the door of the shop of Sims & Burke, and the deceased was then working inside the shop. Defendant left the shop, and Sims, the deceased, followed after him with a shop hammer in his hand, (the hammer was offered in evidence,) and walked up to defendant, changed the hammer from his right to his left hand, and, placing his right hand on defendant's shoulder, pushed him, and said, "You go off from here and let me alone," to which defendant replied, "God d-n you, do you mean to run me off?" and said that he would not be run off. During this time, defendant had a knife in his hand, and, after Sims pushed defendant, they "hugged up," and commenced fighting, defendant warding off blows from the hammer, about which time deceased said, "Take him away, or I will have to kill him," and defendant cut deceased in the side. Sims died 35 days after the difficulty from blood poison caused by the wound as testified by physicians, one of whom stated that he could not testify that the wound alone caused his death. There was evidence that defendant and deceased were friendly up to the time of the difficulty, and that defendant had been drinking "Beg's bitters" on the day of the killing. There was evidence tending to show that defendant had been whittling before he went to the shop, and his knife was shut up while at the shop of deceased; also, that Sims struck the first blow. At the request of the solicitor, the court gave the following charges, to which defendant excepted: (1) "Although the wound may not have been mortal, yet, if it contributed to the death of the deceased, the defendant is guilty, to the degree that the circumstances establish under the evidence. (2) Even if the defendant is shown to have been in great peril of losing his life or suffering great bodily harm, if the jury is satisfied from the evidence that the defendant provoked or encouraged the difficulty, then he cannot be acquitted on account of his perilous condition. (3) If the defendant is shown by the evidence to have provoked or encouraged the difficulty with the deceased, then he cannot set up self-defense as a defense in this case, even if it is shown by the evidence that he was really in imminent peril of losing his life or suffering bodily harm. (4) The defendant cannot be acquitted on the ground that he acted in self-defense, if the evidence shows that defendant was not reasonably free from blame in bringing on the difficulty." The defendant asked the court to give the following charges, and excepted to the refusal of the court to give each of them: "(1) If you believe from the evidence that Garrett went to the shop to get Sims & Burke to pay some of the costs; that he had no intention of provoking or bringing on the difficulty; that a fight ensued between Sims and defendant, without fault on his part, in which the circumstances and surroundings were such as to produce in the mind of a reasonable man a belief that it was necessary for Garrett to cut Sims, to save his own life or prevent great bodily harm; and that the cutting was done under such circumstances,-then Garrett acted in self-defense, and you must find him not guilty. (2) If the jury believe from all the evidence that the defendant did not bring on the difficulty, or voluntarily enter into it, but that when he went to the shop it was only for the purpose of getting Sims & Burke to pay a part of the costs; that Sims approached him with hammer in one hand, and pushed him back with the other and at the same time was in the attitude of striking defendant,-then defendant would be authorized to strike back, if necessary to prevent great bodily harm to himself; and if you further believe from the evidence that the facts and circumstances were such as to produce in the mind of a reasonable man the belief that there was danger of great bodily harm being inflicted by Sims on defendant at and just before the cutting, then the cutting of Sims by defendant, under such circumstances, would be in self-defense, and they should find defendant not guilty. (3) If the defendant went to the shop, at the suggestion of Hall, for the purpose of seeing about the costs, and with no intention of having a difficulty, and Sims came out to him, armed with a shop hammer, and, in a rude manner, ordered him off and pushed him away, with the intention to provoke a difficulty, and struck at defendant with the shop hammer, and the parties grabbed each other and scuffled, and after this and when the appearances and circumstances surrounding the defendant were such as to produce on his mind a reasonable belief that he was about to lose his life or suffer great bodily harm, and that he had no reasonable way to retreat, then the defendant could cut Sims, in defense of his own life, to save his own person from great bodily harm; and, if the jury believe from the evidence that the defendant cut Sims under such circumstances, then the law says he is not guilty, and the jury should find the defendant not guilty. (4) If the defendant, at the time of the difficulty, was only trying to get Sims & Burke to knock off some court costs, and had no intention of raising or bringing on a difficulty, he had the right to kill Sims in self-defense, if necessary to prevent the taking of his own life, or preventing great bodily harm to the defendant; and if the necessity was not real, but only apparent, such as to induce a reasonable man to act on such apparent necessity, and defendant believed such necessity existed, then he had the right to kill Sims, and you must not find the defendant guilty. (5) If Garrett did not provoke the difficulty, and was not at fault in bringing it on, but only went down to the shop to get Sims & Burke to knock off some of the court costs, and with no intention of having a fuss or fight, then, if Sims assaulted him with a hammer, and produced in his mind even an apparent necessity of cutting him with a knife to prevent great bodily harm, he had the right to strike in self-defense. (6) If it reasonably appears from the evidence that it was necessary for Garrett to cut Sims with his knife to save himself from grievous bodily harm, then, unless defendant was instrumental in bringing on the difficulty, or voluntarily engaged in it, you must find the defendant not guilty. (7) If you believe from the evidence that Sims was working in his shop at the time the defendant went down there, and even if you believe from the evidence that Garrett cursed in front of the shop, this would not justify Sims in advancing on Garrett with hammer in hand, and, in an insulting and severe manner, produce on Garrett an assault and battery; and, if he did so, Garrett had the right to fight in self-defense, unless he brought on the difficulty, or assisted in bringing it on. (8) If the defendant was free from fault in provoking or bringing on the difficulty, he had the right to cut Sims, if it was necessary to save the life of defendant, or prevent great bodily harm to him by Sims. (9) If Garrett was not a fault in bringing on the difficulty, and in the encounter that ensued it became reasonably necessary for him to strike with a knife to save his life, or prevent great bodily harm to himself, this would be in self-defense, and the jury should find him not guilty. (10) If defendant was fighting in self-defense, and there was not an actual, but only an apparent, necessity of cutting Sims, such as would be produced in the mind of a reasonable man, in order to save his own life or prevent great bodily harm, you must not find the defendant guilty. (11) Where two persons fight together willingly on a sudden provocation or quarrel, and in the...

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23 cases
  • Kreutner v. State
    • United States
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    • 9 Abril 1918
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    ... ... reasonable, springing from a consideration and comparison of ... the entire evidence. The former decisions approving the form ... of instruction before us are not regarded as authoritative, ... and many of them have been expressly overruled. Garrett ... v. State, 97 Ala. 18, 14 So. 327; Webb v ... State, 106 Ala. 52, 18 So. 491 ... 17. Two ... instructions requested and refused relate to threats against ... the defendant shown to have been uttered by the deceased. The ... difference in the instructions is that the one is ... ...
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