Givens v. State

• Decision Date: 03 June 1913
• Citation: 62 So. 1020,8 Ala.App. 122
• Parties: GIVENS v. STATE.
• Court: Alabama Court of Appeals

62 So. 1020

8 Ala.App. 122

GIVENS v. STATE.

Court of Appeals of Alabama

June 3, 1913

Appeal from Circuit Court, Russell County; Mike Sollie, Judge.

Jake Givens was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Glenn & De Graffenried, of Seale, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant, Jake Givens, was jointly indicted with Ed Smith for the murder of Monk Holman; one count charging the murder to have been committed by shooting deceased with a gun and the other by striking him with a stick. The defendant was tried separately and convicted of manslaughter in the first degree and given a sentence of eight years. He introduced no evidence at the trial, and the case was submitted to the jury alone upon the evidence offered by the state, which consisted of the testimony of only three witnesses, one of whom was the physician who examined the deceased and who testified only that his death resulted, not from the blow with the stick (which it appears defendant administered), but from a gunshot wound (which it appears the codefendant, Ed Smith inflicted). At the conclusion of the testimony of each of these witnesses, the defendant moved to exclude it and urges here that the court erred in overruling the motion, basing his insistence upon the ground that the proof without conflict shows that the codefendant, Ed Smith, actually fired the shot that killed deceased, and fails to show that the defendant was connected with the killing in any such way as to make him criminally responsible for the act of said codefendant, Ed Smith.

It is perhaps necessary to an understanding of the disposition we make of this question that we should review briefly the facts. It appears that shortly before the fatal difficulty which occurred on a Sunday in the public road, five persons were seen passing in a group along the road by Will Chambers' store, to wit, the defendant, Jake Givens, his codefendant and stepson, Ed Smith, his stepson, Lonzo Smith, his wife, Samantha Givens, and deceased, Monk Holman; the two former walking in front, the other two next, and the deceased following some 16 or 25 feet behind. At the time the parties passed a quarrel or argument over a dollar was in progress and going on between deceased, who, as said, was following in the rear, and the defendant, who, with the codefendant, was in front. The defendant was heard to say to the deceased, "I don't owe you any dollar," to which deceased replied with an oath, "You do owe me a dollar, and you are going to pay me to-day." As the parties proceeded further down the road in this fashion, still quarreling, the defendant was seen, when the group had reached a point about 40 or 50 yards beyond the store, to pick up by the roadside a stick that looked to be a wagon standard, whereupon, and shortly afterwards, the deceased was seen to approach nearer to the defendant, and one witness says deceased then struck at or cut at defendant with his knife, though it does not appear that he struck him or even touched him; and the other witness says he did not see deceased with any knife nor see him strike at defendant. The defendant then (his codefendant and stepson standing in the road by him at the time) struck deceased so violently on the head with the stick or wagon handle, which he had before picked up, as to fell deceased to the ground, whereupon the codefendant, Ed Smith, shot and killed deceased. As to just how soon the shot was fired and the circumstances under which it was fired, the only two witnesses (each of whom, we infer, was some distance off) differ. One of these witnesses testified that the shot was fired just about the same time that defendant struck deceased with the stick; in his language, "The shot and the lick was about the same time;" and he further stated that he did not see Samantha Givens, defendant's wife, run in between defendant and deceased after deceased was knocked down by the lick from defendant and before deceased was shot, and "that deceased did not get up cutting at her [Samantha Givens] and while cutting at her get shot." The other witness testified, however, that, when defendant struck and knocked deceased down, his wife, Samantha Givens, ran in between the two, saying, "Quit, Jake!" and pushed defendant, her husband, back, and that the deceased, while getting up, staggering, from the ground, was cutting outward from himself toward said Samantha Givens, the mother of codefendant, Ed Smith, and that the latter did not pull his pistol and fire at deceased until deceased was getting up and cutting toward codefendant's mother, who was some four feet away.

Of course if the defendant in striking deceased had no further purpose than merely to inflict a battery upon him, and there was no conspiracy, preconcert, or common design or understanding between him and the codefendant that the latter was to help him should the need arise, and he did not counsel, incite, procure, or consent to the latter's act or even if there was such an understanding, and the latter willfully exceeded the common purpose by killing deceased, when he knew it was not necessary to the accomplishment of the...