Goodwin v. State

• Decision Date: 04 May 1894
• Citation: 102 Ala. 87,15 So. 571
• Parties: GOODWIN v. STATE.
• Court: Alabama Supreme Court

15 So. 571

102 Ala. 87

GOODWIN v. STATE.

Supreme Court of Alabama

May 4, 1894

Appeal from city court of Mobile; O. J. Semmes, Judge.

Philip Goodwin was convicted of murder, and appeals. Reversed.

The testimony for the state, as is shown by the bill of exceptions, tended to show that on the morning of the killing, the defendant came up in front of the house upon the porch of which Poole was standing, and after abusing Poole said he was going to shoot him; that Poole told the defendant not to shoot him, and that thereupon, after walking a short distance by the yard fence, the defendant raised his gun and fired upon Poole, the shot entering his right side; that there was no demonstration on the part of Poole; and that his hands were hanging down by his side when he was shot. The defendant testified in his own behalf that when he shot said Poole he, Poole, had cursed him, and was starting from the porch in an angry manner, and reached his hand behind him as if to draw a pistol, whereupon the defendant fired. During the examination of Jerry Busby as a witness for the state and after he had testified that he was sitting on the porch of the house where Poole was shot, at the time the shooting occurred, and that he knew the respective positions of the parties, the said witness was asked the following question by the solicitor: "Did you show Mr. Dorlan the place where Poole and Goodwin were each standing when the shooting took place?" The defendant objected to this question, and duly excepted to the court's overruling his objection. The witness answered: "I pointed out to Mr. Dorlan the place where Poole was standing on the gallery when he was shot, and also the place where Goodwin was standing when he shot Poole. I saw Mr. Dorlan measure the distance between these two points." Defendant excepted to the court overruling his motion to exclude this answer. Upon the introduction of the said Phelan Dorlan, who was sheriff of Mobile county, as a witness for the state, the solicitor asked him the following question: "Did Mr. Jerry Busby show you the place where Mr. Poole and Goodwin were each standing at the time of the shooting?" The defendant objected to this question, and duly excepted to the court's overruling this objection. The witness answered "Mr. Jerry Busby showed me the place where Poole and Goodwin were each standing at the time of the shooting. I measured the distance between these two points." The defendant moved to exclude this answer from the jury, and duly excepted to the court's overruling his motion. The solicitor then asked the witness: "What is the distance between these two points?" The defendant objected to this question, and duly excepted to the court's overruling his objection, and upon the witness giving the distance according to the measurements he had made, the defendant moved to exclude said answer, and duly excepted to the overruling his said motion. Upon the introduction of several witnesses by the defendant who testified as to his good reputation for peace and quiet, the solicitor on cross-examination asked each of the witnesses the following question: "Did you hear that Philip Goodwin hit a man with an ax at Cuba, Mississippi, before he came to Venetia," the place where the shooting occurred "and that was the reason he left Cuba?" The defendant separately objected to each of these questions, as asked the several witnesses. The court overruled each of such objections, and the defendant separately excepted to each of these rulings. The facts in reference to the alleged confessions of the defendant are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury each of the following charges, and separately excepted to the court's refusal to give each of them as asked: (3) "If the jury believe from the evidence that the jailer told the prisoner that it would be worse for him if he did not confess, before said confession was made to him, then the jury will disregard said confession in considering the evidence in this case." (4) "If the jury believe from the evidence that the jailer made any threats to the prisoner, before said confession was made to him, then the jury will discard said confession in weighing the evidence in this cause." (6) "If the jury believe from the evidence that, at the time the defendant fired the fatal shot, the deceased was advancing towards defendant in an angry and threatening manner, and as he advanced put his right hand towards his hip pocket as if to draw his pistol, then the defendant could lawfully anticipate his assailant and fire upon him first and without waiting till the deceased drew his pistol, and the jury must acquit the defendant." (7) "If the jury believe from the evidence, that, at the time the fatal shot was fired, the deceased cursed the defendant, and was advancing towards him in an angry and threatening manner, and as he advanced put his right hand back towards his hip pocket as if to draw his pistol, then the defendant could lawfully fire upon his assailant and the jury must acquit him." (8) "If the jury believe from the evidence, that, at the time the fatal shot was fired, the deceased cursed or abused the defendant, and advanced towards him in an angry and threatening manner, and as he advanced put his right hand back towards his hip pocket, as if to draw his pistol, and that the defendant had good reason to believe and did believe that he was in great danger of life or limb or of great bodily harm from the deceased, then he could lawfully fire upon the deceased, and the jury must acquit him." (9) "If the jury believe from the evidence, that, at the time the fatal shot was fired, the defendant had good reason to believe and did believe that he was in great danger of life or limb, or of great bodily harm, at the hands of the deceased, then the jury must acquit him." (10) "If the jury believe from the evidence, that, at the time the fatal shot was fired, the defendant had good reason to believe and did believe that he was in danger of life or limb, or of great bodily harm, at the hands of the deceased, then the defendant might lawfully anticipate the deceased and fire upon him, without waiting for him to draw his pistol, and the jury must acquit him." (11) "If the jury believe from the evidence, that, at the time the fatal shot was fired, the deceased cursed or abused the defendant and was advancing towards him in an angry and threatening manner, and as he advanced put his right hand back towards his hip pocket, as if to draw his pistol, and the defendant had good reason to believe and did believe that he was in great danger of life or limb or of great bodily harm from the deceased, then the defendant might act on appearances, and fire upon the deceased, without waiting for the deceased to draw his pistol, and the defendant, under such circumstances, could lawfully fire upon the deceased, even if it should turn out that the deceased had no pistol in his pocket." (12) "If the jury believe from the evidence that, at the time the fatal shot was fired, the deceased cursed or abused the defendant, and was advancing towards him in an angry manner, and as he advanced put his right hand back towards his hip pocket as if to draw his pistol, and the defendant had good reason to believe and did believe that he was in great danger of life or limb or of great bodily harm, from the deceased, then the defendant might act on appearances, and fire upon the deceased, without waiting for the deceased to draw his pistol, and the defendant, under such circumstances, could lawfully fire upon the deceased, even if it should turn out that the deceased in fact had no pistol in his pocket at the time, and the jury must acquit the defendant." (29) "If the defendant, at the time he shot, believed that he was in danger of his life, or of great bodily harm from the deceased, though in fact he was mistaken, and was not in actual danger, yet, if he did so believe, and had reasonable grounds to so believe, the defendant had the right to shoot in self-defense, and the jury must acquit him." (39) "It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; but, if the jury are satisfied, from all the evidence in the case, that the circumstances attending the firing of the fatal shot were such as to impress Philip Goodwin, the defendant, with a reasonable belief that at the time of firing the shot it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty."

McCarron & Lewis and Henry Tonsmeire, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HARALSON J.

1. On the day set for the trial of this cause, the names of the 100 persons allowed and summoned for the trial were placed in a hat, and the drawing proceeded under the direction of the court, and according to the terms of the statute (Acts 1884-85, p. 539), until the name of Francisco Gomez, Jr., was called, when one Francisco Gomez appeared in person, who being sworn, stated that he was 70 years old; that he was not Francisco Gomez, Jr.; his son bore that name, and lived in Mobile county. The old man claimed his exemption for overage which was allowed by the court. The copy of the venire that had been served on defendant, contained the name of Francisco Gomez, Jr. The defendant then moved to quash the venire, which motion the court denied, and ordered the sheriff to summon Francisco Gomez, Jr., instanter, and stopped the proceedings till said Gomez, Jr., appeared in court. He was challenged peremptorily by the state. The defendant excepted...