George v. State
| Decision Date | 28 April 1906 |
| Citation | 145 Ala. 41,40 So. 961 |
| Parties | GEORGE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.
"To be officially reported."
Ben George was convicted of murder, and he appeals. Reversed and remanded.
The defendant was indicted and tried for the murder of one Packer by cutting him with a knife. On the trial witness Dinkins was permitted to testify, over the objection of defendant, that immediately after the difficulty deceased ran to where he was, fell, and was bleeding, and said that he had been cut. The witness Sylvester was permitted to testify, over the objection of the defendant, that about two weeks before the killing he met the defendant at Claiborne, and defendant told him that if they did not quit bothering him about a pasture down on the Torrey place there was going to be trouble. On cross-examination witness stated that Warren Dinkins was the only person that defendant spoke of as giving him trouble about the pasture, and that defendant did not mention the deceased's name. Whereupon the defendant moved the court to exclude the testimony of the witness Sylvester. The court refused the motion, and defendant excepted.
The defendant requested the court to give the following written charges: Charge 1: "Gentlemen of the jury, I charge you that an assault with the hand or fist never justifies or excuses a homicide under ordinary circumstances, and it is for you to decide whether the facts in this case are within the ordinary reason or not." Charge 2: "Gentlemen of the jury, you may look to the relative size of the defendant and the deceased, their respective ages and weight and physical condition, in drawing your conclusion that the defendant was or not at the time of the fatal difficulty, in imminent danger of loss of life, or was exposed to grievous bodily harm." Charge 3: "Gentlemen of the jury, I charge you that, if you believe that the defendant was free from fault in bringing on the difficulty, and had no reasonable means of escape, and was in imminent danger of his life, or was exposed to great bodily harm, then he had the right to anticipate his assailant and strike the fatal blow."
At the request of the defendant the court gave the following charge "The court charges the jury that prior communicated threats made by the deceased against the defendant have a tendency to make the defendant take more prompt and decisive measures to protect himself." After giving the charge the court qualified it as follows: "Provided, gentlemen of the jury, you believe that the deceased was making a felonious assault upon the defendant at the time he struck the fatal blow." The defendant excepted to the qualification made by the court.
The defendant was convicted of manslaughter in the first degree and sentenced to imprisonment in the penitentiary for a term of five years.
Bayles & Hybart, for appellant.
Massey K. Wilson, Atty. Gen., for the State.
The bill of exceptions does not disclose that an objection was made to the court's making defendant go to trial, or an exception to the action of the court. Walker v State, 117 Ala. 85, 23 So. 670.
The trial court committed no error of which the defendant can complain in permitting the witness to testify that deceased told him he was cut. He did not say defendant cut him; but had he so stated, it would have been...
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Cooper v. State
... ... ready for a combat into which he had been forced. Taking ... the defendant's own testimony, therefore, as absolutely ... true, the verdict was manifestly correct, and any other ... would have been clearly against the law and the ... "In ... George v. State, 145 Ala. 41, 40 So. 961, 117 Am. St. Rep ... 17, the court said: ... "The ... defendant did not have to wait until a felonious assault ... was made upon him. If the other elements of self-defense ... existed, and the deceased had made threats against him ... which ... ...
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...from the hand or fist under ordinary circumstances, neither justifies nor excuses the use of a deadly weapon." George v. State, 145 Ala. 41, 44-45, 40 So. 961, 962 (1906). See also Elliott v. State, 16 Ala.App. 464, 78 So. 633 (1918); Matthews v. State, 22 Ala.App. 366, 115 So. 763 However,......
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