Harbour v. State

• Decision Date: 09 June 1904
• Citation: 140 Ala. 103,37 So. 330
• Parties: HARBOUR v. STATE.
• Court: Alabama Supreme Court

37 So. 330

140 Ala. 103

HARBOUR v. STATE.

Supreme Court of Alabama

June 9, 1904

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

Wright Harbour was convicted of manslaughter in the first degree and appeals. Affirmed.

On the second trial, after new trial granted after conviction of manslaughter, the defendant introduced his plea of former acquittal as to murder in either degree. The truth of this plea was confessed by the solicitor for the state. An issue was joined upon the defendant's plea of not guilty of manslaughter in the first degree, as charged in the indictment. On the trial under this issue the state introduced evidence showing that in De Kalb county, prior to the finding of the indictment in this case, the defendant shot and killed Nick Petty with a pistol. The evidence introduced by the defendant tended to show, at the time he shot the deceased, the latter was approaching him with a drawn knife, with which he had tried to cut him, and that, as he continued to come towards him, the defendant fired upon the deceased and killed him. The facts relating to the exceptions reserved to the rulings of the trial court upon the evidence, which are reviewed in the present appeal, are sufficiently shown in the opinion. The defendant, as a witness in his own behalf, after testifying to the circumstances of the killing, testified that when he went to the house of his daughter, the wife of one Wallace Reid, he carried a pistol concealed about his person. There was no objection interposed to this testimony of the defendant at the time it was given; and the defendant further testified the reason he carried the pistol was that his life had been threatened. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently set forth in the opinion.

The defendant requested the court, among others, to give to the jury the following written charges, and separately excepted to the court's refusal to give each of said charges as asked: "(2) When the law says one must not fight willingly, it does not mean he shall not fight willingly or intentionally for his protection. It means he shall not fight willingly or intentionally to gratify his own desire to fight. (3) The court charges the jury that whether or not Harbour had a pistol concealed about his person at the time of the difficulty between him and Petty is no evidence that Harbour killed Petty unlawfully. * * * (4) The court charges the jury that the law which says that a man must not fight in a difficulty willingly does not mean that he cannot fight willingly when he fights in self-defense."

Davis &amp Haralson, Dortch & Martin, and Goodhue & Blackwood, for appellant.

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

DOWDELL J.

The defendant offered to prove by one Appleton, a witness sworn in his behalf, that two days before the killing witness had a conversation with deceased "about school matters, also about some other matters," and the deceased said "If I find out certain things have transpired, I will stamp the life out of somebody." An objection by the state was sustained to this evidence. It was not shown, nor attempted to be shown, that the defendant was in any wise connected with the "school matters," nor that any reference was made to the defendant in the "some other matters" talked about. No particular person was designated, and the threat was conditioned and general. There is nothing in the record affording any inference that the threat had any reference whatever to the defendant. The difficulty that occurred two days after the threat, and the circumstances under which it occurred, fail to suggest any connection of the defendant with the threat. The threat being in its nature general, as evidence, it falls within the rule of exclusion laid down in King v. State, 89 Ala 146, 7 So. 750, and Henson v. State, 120 Ala. 316, 25 So. 23. Besides, there was no pretense that the deceased ever found out that "certain things had transpired," upon which the threat was conditionally based. We are of the opinion that the objection to this evidence was properly sustained.

The next insistence in argument by counsel for appellant of error in the ruling of the trial court is the refusal of written charges, 2 and 4, requested by the defendant. It is urged that these charges assert the law as laid down by this court in Hornsby v. State, 94 Ala. 65, 10 So. 522, and Domingus v. State, 94 Ala. 9, 11 So. 190, and reiterated in Karr v. State, 106 Ala. 1, 17 So. 328. The principle referred to in these cases is stated in Hornsby's Case, supra, as follows: "There may be a formed design to take life by one acting entirely in self-defense. If a party is without fault in provoking a difficulty, if there is no reasonable way open to him to retreat and escape and if the assault upon him is of such a character as to endanger his life, or such as to impress a reasonable man that to save his own life it is necessary to strike, he may strike in self-defense, and with the formed design...