Glass v. State

• Decision Date: 31 May 1906
• Citation: 41 So. 727,147 Ala. 50
• Parties: GLASS v. STATE.
• Court: Alabama Supreme Court

41 So. 727

147 Ala. 50

GLASS v. STATE.

Supreme Court of Alabama

May 31, 1906

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

"To be officially reported."

J. D Glass was convicted of murder, and appeals. Reversed.

Nearly all the facts necessary to a proper understanding of the case appear in the opinion. The witness Knight was permitted to testify over the objection of the defendant that he saw the defendant and Bedsole about an hour and a half before the difficulty over at the new mill, and that Glass said in Bedsole's presence that they were going over to Milner's house and dance, or break it up. The witness Penler was allowed to testify that he heard the shots, and soon thereafter two boys came running by his house from the direction of Milner's, he living about three doors below Milner, when he heard the one behind say, "Wait, F. J I've killed one damn scoundrel, and I'll kill another if he runs up on me;" that the one behind and the one who called to "F. J." had a pistol in his hand. The witness was further permitted to testify that Bedsole was commonly called "F. J." The solicitor asked the witness Carden, "Is it not a fact that you were indicted in Elmore county for selling whisky, and asked Mr. Rutherford to be a witness for you, and he said that he would tell the truth, and it would hurt, and you got mad with him about it and have been mad with him ever since?" Mr. Rutherford was the man alleged to have been killed. Objection to this question was overruled. The defendant inquired of witness Law on cross-examination, "Do you think you know your general character in the community in which you live?" "Is your character good or bad in the community in which you live?" The court sustained the solicitor's objection to these questions.

The defendant requested the court to give the following charges which were refused: "(4) If the defendant J. D. Glass was at fault in bringing on the difficulty, but withdrew from it in good faith and was departing, and the deceased came out of the witness Milner's house, walked up to the defendant Glass, and pushed or knocked him down, and got down on him and it appeared to the defendant Glass that he was in danger of great bodily harm, and the defendant Glass could not have retreated, he had the right to shoot the deceased. (5) There is no evidence in this case that the defendant Glass did or said anything in Milner's house that would have justified the deceased, Rutherford, in striking him. * * * (11) If the jury believe from the evidence that the state has failed to show any motive on part of defendant Glass to commit the offense charged, and his guilt is not clearly proven, then this absence of motive may, when considered in connection with all the evidence in the case, generate in the minds of the jury a reasonable doubt of the guilt of the defendant Glass. * * * (28) If the jury believe from the evidence that the defendant Glass had had no difficulty with the deceased, and the defendant Glass was standing in the field opposite Milner's house, and went towards the defendant, and nothing was said or done by defendant Glass to the deceased, and the deceased shoved or knocked Glass down, and Glass could not have retreated, and it appeared to him that he was in danger of receiving great bodily harm from deceased, then he had the right to shoot."

Hill, Hill & Whiting, for appellant.

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

DENSON J.

The appellant, J. D. Glass, was jointly indicted and tried with one Frank Bedsole for the murder of Marshall Rutherford. The trial resulted in the acquittal of Bedsole and the conviction of Glass of murder in the second degree. From the judgment of conviction, Glass has appealed.

The killing was done by Glass with a pistol on the first night in May, 1905, in the city of Montgomery, on what is known as "Factory Row" and across the road from the house of James Milner. There was a dance in progress at Milner's house, and several persons were gathered there. Among them were the deceased and his three little girls. Besides there were a number of ladies in the house. All the occurrences and conversations of the evening from the time defendant Glass appeared at James Milner's house, until the killing of the deceased, and in which defendant Glass participated, were shown to be but parts of a continuous transaction, occurring within a brief space of time, and there was no error in permitting the state's witness James Milner to testify to them. Armor's Case, 63 Ala. 173; Stitt's Case, 91 Ala. 10, 8 So. 669, 24 Am. St. Rep. 853; Jordan's Case, 81 Ala. 20, 1 So. 577; s. c. 79 Ala. 9; Churchwell's Case, 117 Ala. 126, 23 So. 72.

The defendant Glass was arrested several hours after the shooting by Policeman Avant, assisted by Policeman McDade. The fact that defendant threw his hands behind him and drew his pistol at the time of the arrest was properly allowed to be proved. The conduct and demeanor of defendant at the time of his arrest are competent evidence against him. Henry's Case, 107 Ala. 22, 19 So. 23; Bowle's Case, 58 Ala. 335.

The declaration made by defendant Glass about an hour or an hour and a half before the killing, while he and defendant Bedsole were together, when taken in connection with the other evidence, was properly admitted as tending to show a malevolent spirit on the part of Glass, and a common purpose on the part of him and Bedsole to go to the dance for an unlawful purpose. Witness McHugh was permitted to testify that at McNeil's store, about a half hour before the shooting, he saw defendant Glass whisper to one Redmond,...