Henderson v. State

• Citation: 65 So. 721,11 Ala.App. 37
• Decision Date: 04 June 1914
• Docket Number: 129
• Parties: HENDERSON v. STATE.
• Court: Alabama Court of Appeals

65 So. 721

11 Ala.App. 37

HENDERSON v. STATE.

No. 129

Court of Appeals of Alabama

June 4, 1914

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Joe Henderson was convicted of murder in the second degree, and appeals. Affirmed.

The facts sufficiently appear from the opinion of the court. The following are the charges refused:

(15) The court charges the jury that, in order to hold one criminally responsible for a homicide committed by another there must have been a conspiracy or concert between them and the deed must have been done in furtherance thereof, and it must have been within the common object or purpose. (18) The court charges the jury that a man should not be convicted of murder where the jury have a reasonable doubt, growing out of the evidence, as to whether his act caused the death of deceased.

These two charges are in effect the same as charges 19, 11 "11," 12, and J.

(14) The court charges that the burden of proving lack of justification or excuse for the commission of murder is upon the state, and, unless the state has proved that there was no justification or excuse for the killing of Jim Royal, then you must acquit defendant.

(24) The court charges that the evidence of the good character for peace and quiet of defendant, and of the bad character of deceased for violence and turbulence, is a matter which must be considered by the jury in making up their verdict, unless they disbelieve the evidence of the witnesses who testified on these matters.

(4) The court charges the jury that each juryman must be separately satisfied, beyond a reasonable doubt and to a moral certainty, that defendant is guilty of the crime charged, or you cannot convict him.

Given charge 6 is as follows:

The court charges the jury that the only foundation for a verdict of guilt in this case is that the entire jury could believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty, to the exclusion of every probability of his innocence and reasonable doubt of his guilt; if the state has failed to furnish this measure of proof, and so impress the minds of the jury of defendant's guilt, the jury should find defendant not guilty.

Refused charge 13:

If the jury have a reasonable doubt, generated by all the evidence in the case, as to whether defendant acted in self-defense or not, then they should acquit.

(20) The court charges the jury that, before you can find that a conspiracy existed between John and Joe Henderson, you must believe that the original intention of Joe Henderson was unlawful and was prosecuted by unlawful means.

While Pauline Royal was being examined on cross, defendant's counsel asked her "if, at the time of the killing, you had spoken to your lawyer to get a divorce from him on account of cruelty." Objection was made by the state and sustained by the court, with the remark that the same was immaterial, as this would not give any one the right to kill deceased. Later on the court said:

I want to withdraw the remark that I made in discussing the materiality of the evidence--some remark about the character of the deceased man in relation to his wife--not giving the right to anybody to kill him; it was not intended for you and I withdraw it from your consideration.

Tilley & Elmore, of Montgomery, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State

THOMAS, J.

The defendant, jointly with his son, was indicted for murder in the first degree, was tried separately, and was convicted of murder in the second degree and given a sentence of ten years in the penitentiary.

The evidence tended to show, among other things, as follows That, for some time prior to the difficulty, a state of bad feeling existed between defendant and deceased; that deceased conducted a little store about 650 feet from where defendant lived; that defendant's wife and son went over to this store in the morning before the fatal difficulty that happened that afternoon, and that they, after returning home, reported to defendant that deceased had used abusive and insulting language to them while at the store; that upon receiving such report the defendant went to the store and approached deceased, who was then in front of the store, about the matter; that the parties then went inside the store, and that while in there the fatal difficulty commenced, the deceased seizing a shotgun sitting in the store, which defendant then knocked out of his hands, receiving from its discharge a slight wound in the hand; that the parties then grappled and fought together and in the struggle got out in front of the store on the platform and fell fighting together, the deceased having no weapon, but the defendant having a pocketknife, with which, during the difficulty, either before or after the parties fell, he cut deceased three times, the most serious wound produced being one near the naval, which penetrated the abdominal cavity, causing the intestines to protrude; that while the combatants were down on the ground still fighting, deceased having already received these knife wounds, defendant's son, who had just before the difficulty, as said, reported to defendant the mentioned insults offered him and his mother by deceased at the latter's store that morning, came running up from defendant's house, some 650 feet distant, as said, with a shotgun, and fired it into the body of deceased, inflicting upon him a gunshot wound between the third and fourth ribs. Deceased died shortly thereafter. There was evidence tending to show also that the gunshot wound, so inflicted by defendant's son, was the immediate cause of the death, but that the knife wound, so previously inflicted by defendant, accelerated it, and that the latter named wound alone would likely have produced death.

Under the law, if the jury believed from the evidence beyond a reasonable doubt that the knife wound inflicted by the defendant contributed to the death of deceased, then defendant would be guilty of the homicide, notwithstanding the jury may not have believed that death would have inevitably followed from such knife wound alone, and notwithstanding they may not have believed that there was any preconcert or community of purpose between defendant and his son. Daughdrill v. State, 113 Ala. 34, 21 So. 378; Jordan v. State, 79 Ala. 9. And, although the jury may not have believed that said knife wound contributed in the least to the death of deceased, yet, if they did believe from the evidence, beyond a reasonable doubt, that there was preconcert or community of purpose between the defendant and his son, this would render the defendant responsible for the act of his son in killing the deceased, although they intended only a battery upon him, and would warrant a verdict of guilty against defendant, unless the son acted independently of the common purpose and killed the deceased from malice and motives of his own, and was not at the time purposely incited thereto by defendant. The following authorities so amplify and definitely apply these propositions to states of facts similar to those here that a further discussion in this particular is rendered unnecessary: Jordan v. State, 79 Ala. 9; Jordan v. State, 81 Ala. 32, 1 So. 577; Jordan v. State, 82 Ala. 1, 2 So. 460; Martin v State, 89 Ala. 119, 8 So. 23, 18 Am.St.Rep. 91; Amos v. State, 83 Ala. 4, 3 So. 749, 3 Am.St.Rep. 682; Tidwell v. State, 70 Ala. 33; Tanner v. State, 92 Ala. 1, 9 So. 613; Brunson v. State, 124 Ala. 37, 27 So. 410; Frank v. State, 27 Ala. 42; Tally's Case, 102 Ala. 25, 15 So. 722; Morris v....