Gibson v. State

• Decision Date: 06 April 1891
• Citation: 91 Ala. 64,9 So. 171
• Parties: GIBSON ET AL. v. STATE.
• Court: Alabama Supreme Court

9 So. 171

91 Ala. 64

GIBSON ET AL. v. STATE.

Supreme Court of Alabama

April 6, 1891

Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge.

The defendants in this case, Ben and Sam Gibson, brothers, were jointly indicted and tried for the murder of John Smith, by shooting him with a pistol, or by cutting him with a knife. On the first trial each of the defendants was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 20 years; but the judgment was reversed by this court, and the cause remanded, as shown by the report of the case. Gibson v. State, 89 Ala 121-130, 8 South. Rep. 98. On the second trial, as the record now shows, Ben Gibson was again convicted of murder in the second degree, and sentenced to the penitentiary for 12 years; while Sam Gibson was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of three years. The difficulty between the parties occurred on Sunday afternoon, May 19, 1889, near a country school-house, where singing exercises were usually held at that time. The defendants arrived there 10 or 15 minutes before the deceased came up; and when the deceased came up and, after staying in the house a few minutes, started towards a spring or well, which was 100 yards or more from the house, they followed him. The deceased was followed by Green Underwood, who was a cousin of defendants, and who was also examined as a witness for the defense; and the defendants were accompanied by Ben Williamson, who was their brother-in-law. When the parties came near each other, Ben Gibson asked Underwood if that was John Smith, to which Smith replied that it was; and an altercation then ensued between them, growing out of a charge by the former that Smith had gone into the field of his father, Joe Gibson, and had cursed and abused him, which charge was denied by Smith. The evidence for the state was to the effect that, when Smith denied the charge, some other words passed between him and Ben Gibson, when Gibson struck at him, and knocked his hat off; that Smith picked up his hat, and, backing off, put his hand on his pocket; that Gibson advanced on him, and struck him again as he drew his knife; that Smith struck at Ben Gibson with his knife, and cut him in the left arm, whereupon Sam Gibson rushed up, and cut Smith in the left arm and side and that as Smith turned around, and was looking at the wound, Ben Gibson, who was standing on his right, and who had drawn his pistol, fired the fatal shot, striking him in the neck. Each of the defendants testified in their behalf, and each denied that he had sought or encouraged the difficulty with Smith, or had gone to the school-house for the purpose of attacking him. They said that they had been advised by the county solicitor, to whom they applied for advice, that they could not prosecute Smith for his abuse of their father, but could warn him not to come on the premises again, and that they must give this notice or warning in the presence of witnesses; and they said that, when Ben Gibson first accosted Smith, he only warned him, in a peaceable and quiet manner that he must not come on their father's premises again, and that Smith responded with angry and threatening words. Their testimony was corroborated by the county solicitor as to the advice which he had given them; and the other witnesses introduced by them, while giving different versions of the words used and the acts of the several parties at the time of the difficulty, each stated the particulars more favorably to them than the witnesses for the prosecution. The charges asked and refused, and which are noticed particularly in the opinion of this court, do not require a statement of the evidence in detail.

The following charges were asked and refused, exceptions being duly reserved by the defendants to their refusal: (1) "If the jury believe from the evidence that Sam Gibson had no knowledge or information whatever that Ben Gibson had a pistol before the difficulty commenced, or that Ben or himself expected to meet Smith at the school-house on this occasion; and that nothing was said between them, or with any one else, about making an attack on Smith by Ben Gibson, or by any one else; or that there was any agreement, either expressed or implied, that Ben or Sam Gibson would make any attack on John Smith on the day or at the place of the killing, or at any other time and place; and that Sam Gibson without any knowledge or information whatever, of any kind or character, cut John Smith after he had cut his brother Ben, and while he (Sam) saw no weapon or other means of defense in the possession of Ben, and had no knowledge or information that Ben had any pistol or other means of defense; and that Sam Gibson cut John Smith under the reasonable and honest belief that it was necessary for him to strike to keep Smith from killing his brother Ben; and that the circumstances were such as to create in the mind of a reasonable man [a belief that] such necessity existed; and he desisted as soon as he struck; and that Sam Gibson neither provoked nor brought on the difficulty, nor encouraged or aided in the same, or was ready to lend aid, if necessary,-then they should find Sam Gibson not guilty, provided they believe from the evidence that the assault made by Smith on Ben Gibson was felonious and violent, and there was no reasonable mode of defense for Ben without increasing his danger, and that Ben was not in fault in provoking or bringing on the difficulty." (2) "If the jury are reasonably satisfied from the evidence that neither Ben nor Sam Gibson knew anything at all about John Smith's coming to the school-house on the day of the killing, nor had any information that he would be there, but only stopped on being invited, not knowing or expecting Smith to be there, and that they in no way armed themselves...