Gilmore v. State

• Decision Date: 21 July 1904
• Citation: 37 So. 359,141 Ala. 51
• Parties: GILMORE v. STATE.
• Court: Alabama Supreme Court

37 So. 359

141 Ala. 51

GILMORE v. STATE.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Bibb County; John Moore, Judge.

Richard Gilmore was convicted of manslaughter in the first degree. Defendant requested the court to charge that under the evidence the jury could not convict him of murder in either degree, and, the court refusing so to charge, defendant excepted and appeals. Affirmed.

Ellison & Thompson, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The appellant was indicted and tried for murder, and was convicted of manslaughter in the first degree. On the trial the evidence by the state, and which was undisputed, showed that the defendant went into the back room of a store, where the deceased was at the time with several other persons, and that as the defendant entered the room, the deceased asked one of the other parties whether he had heard about the defendant, Gilmore, stealing things from the Centreville Hardware Company, to which the person addressed replied "No." The deceased then said, "Well, he did it." Thereupon the defendant said to the deceased "You are a d--n liar." The deceased then said to the defendant, "You don't mean to call me a d--n liar, do you," and the defendant said, "Yes, you are a d--n liar," whereupon the deceased, who was sitting on a barrel, started to get up, and while in the act of getting up, and at the time facing the defendant, and, as one of the witnesses testified, "reaching for defendant's throat," the fatal shot was fired.

The defendant offered no evidence, except that he offered to show previous threats made by the deceased, which on the objection of the state the court refused to allow, and to this ruling the defendant excepted. In Rutledge v. State, 88 Ala. 89, 7 So. 336, the rule as to the admission of evidence going to show previous threats by the deceased in trials for murder was stated as follows: "That when any phase of the testimony would, if believed, present a case of self-defense, then the accused, using this aspect of the facts adduced as a predicate therefor, may go further, and strengthen it, by showing that the deceased had threatened him, or entertained ill feeling toward him, or that there had been difficulties between them; and a like doctrine obtains with respect to evidence of the violent character of the slain. Or, to state the principle in a more concrete form the evidence adduced must...