Harrell v. State

CourtSupreme Court of Alabama
Writing for the CourtDENSON, J.
Citation49 So. 805,160 Ala. 91
PartiesHARRELL v. STATE.
Decision Date13 May 1909

49 So. 805

160 Ala. 91

HARRELL
v.
STATE.

Supreme Court of Alabama

May 13, 1909


Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Ess Harrell was convicted of murder, and he appeals. Reversed.

Testifying for himself, the defendant said that he and the deceased went on a visit that night, and about 11 o'clock they left the house where they were visiting and started to return home; that the deceased had brought his gun with him, but, not wishing to carry it to the house, stood it up in the corner of a fence near by; that defendant was ahead of the deceased, and when he reached the place where the gun was he picked it up; and, when deceased came up, deceased caught hold of the barrel of the gun while defendant held to the stock, and while in a friendly scuffle over the gun the gun was accidentally discharged, the load taking effect in deceased's bowels. Defendant further testified that he did not have hold of the trigger or the hammer, but only the stock, and did not know how the gun was fired. The charge requested by the defendant is as follows: "Unless the jury believe beyond a reasonable doubt from the evidence in this case that the defendant intentionally fired the gun that killed George Whatley, they will return a verdict of not guilty."

George A. Sorell, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON, J.

The defendant was convicted of murder in the second degree, and has appealed from the judgment of conviction.

Section 6256 of the Code of 1907 provides that the transcript need not contain the organization of the grand jury which found the indictment, unless some question was raised thereon before the trial court. Now, even if it can be said of the present transcript that it fails to show the organization of the grand jury, still this can avail the defendant nothing. The record fails to show that any question was raised in respect to the organization. Hatch's Case, 144 Ala. 50, 40 So. 113; Tipton's Case, 140 Ala. 39, 37 So. 231.

The record shows that the term of the court at which the indictment was found was held by the supernumerary judge; and it is here insisted (for the first time) that the record fails to affirmatively show that the judge of the Fifth circuit, Hon. S. L. Brewer, failed to attend or to hold the court. We are of the opinion, and so hold, that the record, in specifically setting forth that the supernumerary judge held the court, affirmatively shows that...

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10 practice notes
  • Harrell v. State, 6 Div. 171
    • United States
    • Alabama Court of Criminal Appeals
    • June 12, 1984
    ...crime of violence"). It was for the jury to determine the truth of Harrell's testimony that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805 The trial judge did not err in finding that the aggravating circumstances outweighed any mitigating circumstances. The trial jud......
  • Flint v. State, 6 Div. 246
    • United States
    • Alabama Court of Criminal Appeals
    • March 27, 1979
    ...the question of whether the death was criminal or the result of a mere accident was for the jury's determination. Harrell v. State, 160 Ala. 91, 49 So. 805 (1909); Little v. State, 340 So.2d 88 (Ala.Cr.App.1976). The State does not have the burden of proving the lack of an excuse for the co......
  • Langley v. State, 1 Div. 88
    • United States
    • Alabama Court of Criminal Appeals
    • February 26, 1980
    ..."In a prosecution for murder, it is for the jury to determine the claim of the accused that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32; McMillan v. State, 44 Ala.App. 216, 20......
  • Campbell v. State, 186
    • United States
    • Alabama Court of Appeals
    • June 1, 1915
    ...carelessness, which, if there were, would also render the charges faulty. Bynum v. State, 8 Ala.App. 79, 62 So. 983; Harrell v. State, 160 Ala. 91, 49 So. 805. As we find no error in the record, the judgment of conviction is affirmed. Affirmed. ...
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10 cases
  • Harrell v. State, 6 Div. 171
    • United States
    • Alabama Court of Criminal Appeals
    • June 12, 1984
    ...crime of violence"). It was for the jury to determine the truth of Harrell's testimony that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805 The trial judge did not err in finding that the aggravating circumstances outweighed any mitigating circumstances. The trial jud......
  • Flint v. State, 6 Div. 246
    • United States
    • Alabama Court of Criminal Appeals
    • March 27, 1979
    ...the question of whether the death was criminal or the result of a mere accident was for the jury's determination. Harrell v. State, 160 Ala. 91, 49 So. 805 (1909); Little v. State, 340 So.2d 88 (Ala.Cr.App.1976). The State does not have the burden of proving the lack of an excuse for the co......
  • Langley v. State, 1 Div. 88
    • United States
    • Alabama Court of Criminal Appeals
    • February 26, 1980
    ..."In a prosecution for murder, it is for the jury to determine the claim of the accused that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32; McMillan v. State, 44 Ala.App. 216, 20......
  • Campbell v. State, 186
    • United States
    • Alabama Court of Appeals
    • June 1, 1915
    ...carelessness, which, if there were, would also render the charges faulty. Bynum v. State, 8 Ala.App. 79, 62 So. 983; Harrell v. State, 160 Ala. 91, 49 So. 805. As we find no error in the record, the judgment of conviction is affirmed. Affirmed. ...
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