Gordon v. State

• Citation: 36 So. 1009,140 Ala. 29
• Parties: GORDON v. STATE.
• Decision Date: 19 April 1904
• Court: Supreme Court of Alabama

36 So. 1009

140 Ala. 29

GORDON v. STATE.

Supreme Court of Alabama

April 19, 1904

Appeal from Circuit Court, Cherokee County; J. A. Bilbro, Judge.

Louis Gordon was convicted of murder in the second degree, and he appeals. Reversed.

The appellant was indicted and tried for murder in the second degree, was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. The facts and circumstances under which the killing occurred are sufficiently stated in the opinion.

During the examination of one Walter Lawrence, a witness introduced for the state, and who testified that he was present at the furnace at the time the defendant shot and killed Dukes, the deceased, he was asked by the state the following question "Was it light enough under the shed for defendant, after he got under the shed, to see Dukes before he came up to the heater?" The defendant objected to this question upon the ground that it called for illegal, irrelevant, and immaterial evidence. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that it was light enough, the defendant moved the court to exclude the same upon the same grounds, and duly excepted to the court overruling his motion. Upon the cross-examination of this witness the defendant asked him the following question "In what direction was defendant retreating when he was walking back from Dukes? Was he not walking in the direction of his home?" The state objected to this question because it called for irrelevant and illegal evidence. The court sustained the objection, and the defendant duly excepted.

During the examination of one Timberlake as a witness for the defendant he testified that he knew the defendant and the deceased, Dukes, in his lifetime; that the defendant and Dukes had a difficulty about a week prior to the killing, and in this difficulty Dukes used some very rough language to the defendant. Thereupon the defendant asked the witness how this difficulty came about. The state objected to this question. The court sustained the objection, and the defendant duly excepted. The defendant then asked the witness the following question: "What did Dukes do during the difficulty?" Upon the state objecting to this question the defendant then stated to the court that he expected to prove by this witness that the difficulty inquired about had occurred about a week before the killing; that Dukes, after abusing the defendant, went away, and shortly thereafter returned with two pieces of iron in his hand, and asked for the defendant, who in the meantime had gone home. The court refused to allow the defendant to introduce this testimony sustained the state's objection to the question, and to this ruling the defendant duly excepted. The defendant also excepted to the court sustaining the state's objection to the question asked said witness by the defendant, "What did Dukes have in his hands when he came back?" Similar questions as to said prior difficulty were asked several of the defendant's witnesses, to each of which questions separate objections were interposed, which were overruled, and to each of these rulings the defendant separately excepted.

H. W. White, a witness for the defendant, testified to having been present at the time there was a difficulty between Dukes and the defendant about a week before the killing. The defendant asked said witness the following question: "How come you to go up to where Dukes was?" intending to show by such question that the said witness went to where Dukes was at the time of said difficulty for the purpose of getting some cartridges which Dukes had taken from his store. The state objected to this question upon the ground that it called for irrelevant and illegal testimony. The court sustained the objection, and the defendant duly excepted.

Mrs. A. Gordon, the mother of the defendant, was introduced as a witness in his behalf, and testified to a difficulty which the deceased had had with the defendant a short time before the killing, and that in said difficulty the deceased drew his pistol and started towards the defendant, whereupon the witness jumped between them and prevented the shooting. To this last testimony the state objected, and moved the court to exclude the same. The court granted the motion, and the defendant duly excepted.

Mack Hicks, a witness for the defendant, testified that Mrs. Gordon, the mother of the defendant, told him about the difficulty between the defendant and the deceased which occurred at Mrs. Gordon's store some time before Dukes was killed, and in telling him about such difficulty she described the man, but did not know at that time that it was the deceased, and that the witness did not know who the man was from the description. Thereupon the defendant asked the witness the following question: "From the description she gave you then, did you know who this man was?" The state objected to this question, and thereupon defendant stated that he expected to prove by said witness that from the description given him he afterwards found out that the man referred to by Mrs. Gordon was Dukes, the deceased. The court sustained the defendant's objection to the question, refused to allow the defendant to make the proof as proposed, and to this ruling the defendant duly excepted.

Upon the introduction of Will Moore, a witness for the defendant, he testified that he knew Dukes in his lifetime, and had gone over from Rock Run Station to the furnace with him. The defendant then asked said witness if, in going from the station to the furnace, "Dukes made any inquiry about the folks about Rock Run furnace--as to whether they were bad or not?" The state objected to this question. The court sustained the objection, and to this ruling the defendant duly excepted.

During the examination of Sam Carson and one Padgett, witnesses for the defendant, and after they had testified to the good character of the defendant for peace and quiet, they were each asked as to whether they knew of the character of the deceased, in the neighborhood in which he lived, for peace and quiet, and upon each of the witnesses answering they did not know anything about the deceased's character before he was killed, but that since his death they had heard his character for peace and quiet discussed by his neighbors, and from what they had heard they would say that the deceased's character was bad, and that he was a dangerous, turbulent man, the state objected to this evidence, and moved the court to exclude it. The court sustained the objection, granted the motion, and to this ruling the defendant duly excepted.

During the examination of John Smith as a witness for the defendant, and after he had testified to having known the deceased, and that he was drunk on the night he was killed, he was asked the following question: "When Dukes was drunk, is it not true that he was a fussy and overbearing man?" The state objected to this question. The court sustained the objection, and to this ruling the defendant duly excepted.

Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury have a reasonable doubt, growing out of the entire evidence, or out of any part thereof, as...