Harkness v. State

• Decision Date: 18 April 1901
• Parties: HARKNESS v. STATE.
• Court: Alabama Supreme Court

30 So. 73

129 Ala. 71

HARKNESS v. STATE.

Supreme Court of Alabama

April 18, 1901

Appeal from circuit court, Greene county; Greene B. Mobley, Special Judge.

George Harkness was convicted of murder, and appeals. Affirmed.

Mimy Walker, a witness for the state, testified that the deceased was standing in his doorway at the time he was killed by the defendant. Other witnesses for the state testified that the deceased was standing in his doorway or on his front porch at the time the defendant fired the fatal shot. The evidence for the defendant tended to show that at the time of the shooting the deceased was in his yard, walking towards the defendant with a rail lifted in a threatening manner, as if about to strike the defendant. The defendant, as a witness in his own behalf, offered to testify that a few minutes after the shooting occurred he went to Mr. Carpenter's house, a short distance from where the deceased was shot, and that going to the house, he stated to those present that the deceased was advancing upon him with a rail at the time the shot was fired. The state objected to this evidence on the ground that it was illegal, irrelevant, and immaterial. The court sustained the evidence, and the defendant duly excepted. There was other evidence sought to be introduced by the defendant as to what the defendant had said in reference to the first difficulty with the deceased, when the deceased drew his knife upon him and said that he expected to kill him; but upon the estate objecting to this testimony upon the ground that it was irrelevant, immaterial, and illegal, the court sustained the objection. To this ruling the defendant duly excepted. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The defendant separately excepted to the following portion of the court's charge to the jury: "If the deceased died from the effects of a wound inflicted by a gun in the hands of the defendant, and such wound was intentionally inflicted in pursuance of a previously formed design to take his life he would be guilty of murder." The court, at the request of the state, gave to the jury the following written charges "(a) The court charges the jury that in cases of homicide the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption unless the evidence proving the killing shows also, that it was perpetrated without malice; and whenever malice is unrebutted by the circumstances of the killing, or by other facts in evidence, there can be no conviction for any less degree of homicide than murder. (b) The court charges the jury that, before the jury can acquit the defendant on the grounds of self-defense, three essential elements must concur: First, the defendant must be without fault in bringing on the difficulty, and must be disregardful of the consequences in this respect of any wrongful act or words; second, there must have existed at the time, either really or apparently, as to lead a reasonable mind to the belief that it actually existed, a present, imperious impending necessity to shoot in order to save himself from great bodily harm; third, and there must have been no other reasonable mode of escape, by retreat or by avoiding the combat, with safety. (c) The court charges the jury that if the defendant, in Greene county, and before the finding of this indictment, purposely killed the deceased Sandy Walker by shooting him with a gun, with a wickedness or depravity of heart towards the deceased, and the killing was determined on beforehand and after reflection (for however short a time before the fatal shooting was done is immaterial), the defendant is guilty of murder. (d) The court charges the jury that the state is not required to prove the defendant's guilt beyond all doubt, but only beyond a reasonable doubt." To the giving of each of these charges the defendant separately excepted, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) In this case, if the testimony of the witness Mimy Walker so conflicts with the testimony of the defendant, George Harkness, as that both witnesses cannot have spoken the truth, then it is the duty of the jury to say which witness spoke truthfully and which falsely; and in determining that question the jury is authorized to ascertain which witness is corroborated by the other evidence in the case, and which witness is contradicted by the other evidence in the case. (2) Unless the jury believe from the evidence beyond a reasonable doubt that Sandy Walker was shot by the defendant while said Sandy Walker was standing in his door, or on the gallery in front of his door, then the jury must acquit the defendant. (3) Unless the jury believe from the evidence in this case, and beyond a reasonable doubt, that Sandy Walker was standing in his door when he was shot by the defendant, then the jury should acquit the defendant. (4) If the jury, after considering all the evidence in this case, have a reasonable doubt as to whether Sandy Walker was standing in the door of his house or was in his yard at the time he was shot, then the jury should acquit the defendant. (5) If the jury are not satisfied from the evidence in this case, beyond a reasonable doubt, that defendant did not act...