Harrison v. State

Citation144 Ala. 20,40 So. 568
PartiesHARRISON v. STATE.
Decision Date05 April 1906
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

"To be officially reported."

T. J Harrison was convicted of murder, and appeals. Affirmed.

The defendant was indicted as follows: "The grand jury of said county charge that before the finding of this indictment that T. J. Harrison, whose Christian name is to the grand jury otherwise unknown, unlawfully and with malice aforethought killed Tom Linnville by shooting him with a gun. The grand jury of said county further charge that before the finding of this indictment Thomas J. Harrison unlawfully and with malice aforethought killed Tom Linnville by shooting him with a gun," etc. In this second count, the "i" is not dotted in the name "Linnville." The defendant moved to quash the indictment because of the difference, in the names of the party alleged to have been killed, in the two counts. This motion was overruled. The defendant then interposed demurrers to the indictment as follows: "Because the two counts were self-contradictory and repugnant, it being alleged in one count that the defendant's Christian name was otherwise unknown, and in the second count sets out his Christian name. (2) Because of the difference in the name in the two counts of the person alleged to have been killed. * * * (5) Because said first count does not conclude against the peace and dignity of the state of Alabama."

The court, at the request of the state, gave the following written charges: Charge 1: "When passions have been suddenly aroused upon a sufficient provocation, in order that such may reduce a killing from murder to manslaughter, it must appear that the killing was done under the influence of passion promptly acted upon. If the passions did not have sway, and were allowed to subside, and vengeance or malice is allowed to take the place of passion, and the killing was done from motives of vengeance or malice, such killing would be murder, and not manslaughter." Charge 2: "A doubt which justifies an acquittal must be a reasonable one growing out of a failure of the evidence to produce an abiding conviction in the minds of the jurors of the facts necessary to make out the case." Charge 3: "If the deceased was a violent, dangerous man, this did not authorize the defendant to kill him. If, at the time the fatal shot was fired, the deceased was going from the defendant, and was making no demonstration to injure the defendant, and if the defendant had no reasonable ground to believe the deceased was about to kill him, or seriously injure him, then such character offered the defendant no excuse for killing the deceased." Charge 4: "The presumption of defendant's innocence has the effect to cast upon the state the burden of proving the defendant's guilt beyond a reasonable doubt, and, if his guilt is so proven, the presumption of innocence can have no effect." Charge 5 "I charge you, gentlemen of the jury, that while the law says that the defendant is a competent witness and may testify in his own behalf, and that you should not capriciously disregard it, it does not mean you should believe it. It means only that you should consider it, and ascertain to the best of your judgment whether it is true. If true, you should act upon it as upon truth from any other source. If you should not believe it, you should reject it. You are the sole judges of the truth of the evidence." Charge 6: "I charge you, gentlemen of the jury, that in considering the evidence you should weigh it in the light of all of the circumstances. When you have so considered the evidence, if you have an abiding conviction beyond a reasonable doubt that the defendant killed the deceased from malice, such killing would be murder."

The defendant requested the court to give the following written charges separately, each of which were refused: "(A) If the defendant, at the time he shot, believed 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, the law may mitigate the time from murder to manslaughter. (B) The court charges the jury that if the defendant carried his gun to the place of difficulty with no purpose of provoking or bringing on a difficulty, and if deceased cursed and abused him, struck and assaulted him with a pistol, and threatened to kill him, and if, when defendant fired the fatal shot, the deceased had his pistol in his hand and was turning towards defendant in a threatening manner, and the circumstances were such as to reasonably impress the defendant that he was in great and imminent peril, and if there was no reasonable mode of escape without increasing his peril, and he was free from fault in bringing on the difficulty, the jury should acquit him. (C) The court charges the jury that if the deceased had assaulted the defendant with a pistol by striking him just before the fatal shot was fired, and had cursed and abused him and threatened to kill him, and if at the time of the shooting just after said assault and while smarting under the blow, defendant fired the fatal shot, while deceased was in the act of turning on defendant, only a few feet away, with a loaded pistol in his hand pointed towards the defendant, and the circumstances were such as to reasonably impress defendant that he was in great and imminent peril, and the defendant thereupon fired the fatal shot, then the defendant could not be convicted of murder, either in the first or second degree. (D) The court charges the jury that if defendant was being assaulted by the deceased, at the time he fired the fatal shot, with a pistol in dangerous proximity, and he was free from fault in bringing on the difficulty, and if the assault was so violent in character as to make retreat dangerous or impossible, and the appearances were such as to impress the mind of a reasonably prudent man that his life was in danger, or that he was in danger of serious bodily harm, from such assault, then the defendant had the right to shoot deceased, and...

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21 cases
  • Kyser v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 14 Abril 1987
    ...did not provoke the use of unlawful physical force by the victim and was not the initial aggressor. See § 13A-3-23(c). Harrison v. State, 144 Ala. 20, 40 So. 568 (1906); Oldacre v. State, 196 Ala. 690, 72 So. 303 (1916). "Statements of law in judicial opinions are not always proper for jury......
  • Montgomery v. State
    • United States
    • Alabama Court of Appeals
    • 30 Junio 1911
    ... ... out and base an acquittal upon belief of the defendant's ... testimony alone. That such charges are properly refused has ... been often decided by the Supreme Court. Parker v ... State, 150 Ala. 673, 42 So. 1045; Kirby v ... State, 151 Ala. 66, 44 So. 38; Harrison v ... State, 144 Ala. 20, 49 So. 568; Goldsmith v ... State, 105 Ala. 8, 16 So. 933; Fleming v ... State, 150 Ala. 19, 43 So. 219; Gregory v ... State, 148 Ala. 566, 42 So. 829, and the authorities ... cited in these cases ... Those ... charges framed under the proposition that ... ...
  • Haithcock v. State
    • United States
    • Alabama Court of Appeals
    • 18 Marzo 1930
    ...that each count should so end. The demurrer to the indictment was properly overruled. McGuire v. State, 37 Ala. 161; Harrison v. State, 144 Ala. 20, 40 So. 568. On particular point the opinion in Hill v. State, 22 Ala. App. 422, 116 So. 411, is misleading and should not be followed. In the ......
  • McGhee v. State
    • United States
    • Supreme Court of Alabama
    • 28 Mayo 1912
    ... ... pretermits an honest belief on the part of the defendant of ... his peril. The circumstances may have been such as to impress ... the defendant with a reasonable ... [59 So. 577.] ... belief, yet he must have entertained an honest belief that he ... was in danger. Harrison v. State, 144 Ala. 20, 40 ... So. 568. See charges B and C, in said case. This charge 19 is ... unlike the charge held good in Kennedy's Case, 140 Ala ... 1, 37 So. 90, as it predicates an acquittal upon the facts ... therein hypothesized, whereas the charge in the Kennedy Case ... merely ... ...
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