Henson v. State

• Decision Date: 17 December 1896
• Citation: 21 So. 79,112 Ala. 41
• Parties: HENSON v. STATE.
• Court: Alabama Supreme Court

21 So. 79

112 Ala. 41

HENSON v. STATE.

Supreme Court of Alabama

December 17, 1896

Appeal from circuit court, Walker county; James J. Banks, Judge.

John Henson was indicted, tried, and convicted for manslaughter in the first degree, and sentenced to the penitentiary for three years. From the judgment of conviction, he appeals. Reversed.

On the trial of the cause, as is shown by the bill of exceptions the state introduced evidence tending to show that, upon the defendant saying that some one, cursing him, had stolen his whisky, Dan Hall, the deceased, went up to him, and asked him if he meant that he had stolen the whisky; whereupon the defendant answered, "No," but repeated the vile epithet which he had applied to the person who had stolen his whisky; that thereupon the deceased struck the defendant with his fist, and the defendant shot at him; that the defendant missed the deceased, and, upon the deceased taking up a chair and striking him, the defendant shot twice again, one of the shots taking effect, and killing the deceased. There was evidence introduced on behalf of the defendant tending to show that, before he shot at all, the deceased had struck him with the chair, nearly knocking him down, and that the fatal shot was fired in self-defense. Upon one of the state's witnesses testifying that he and the defendant went to a dance where the killing occurred, the defendant asked him the following question: "Did not the deceased, Dan Hall when you and he started to the ball at Mollie Burns', say he was going to Mollie Burns' one more time, and raise hell?" The state objected to this question, because the threat sought to be elicited was not communicated, and was too general. The court sustained the objection, and the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked "(1) I charge you, gentlemen of the jury, that one of the elements of self-defense is that the defendant must be reasonably free from fault in bringing on the difficulty; and I also charge you that the burden of proof is not on the defendant to prove this element. (2) The burden of proof is not on the defendant to establish self-defense by a preponderance of the evidence; but, if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, you must find him not guilty." The judgment entry was as follows "This day came C. W. Furguson, solicitor, who prosecutes for the state of Alabama, and also came the defendant, in his own proper person and by attorney; and the said defendant, being duly arraigned on the indictment, for his plea thereto in person says that he is not guilty. Issue was joined on this plea, and thereupon came a jury of good and lawful men, who had been selected according to law, to wit, W. W. Handley and eleven others, who, being duly impaneled and sworn as required by law, after hearing the evidence, upon their oaths say, 'We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at imprisonment in the penitentiary for a term of three years.' And now, upon this the 7th day of September, 1896, John Henson, the defendant, being now in open court, and being asked by the court," etc. Among the assignments of error were the following: "(4) The minute entry fails to show that the defendant was present when the jury returned their verdict. (5) The presiding judge in the court below erred in receiving the verdict of the jury in the absence of the defendant."

Coleman & Bankhead and W. H. Smith, Jr., for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted for the offense of manslaughter in the first degree. The evidence shows that the death of deceased resulted from a pistol shot fired by defendant. There was some evidence tending to show that the defendant fired the pistol in self-defense. Upon this phase of the evidence, the defendant requested the court to give the following charge which was refused: "The burden of proof is not on the defendant to establish self-defense by a preponderance of the evidence; but, if all the evidence raises in the mind of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, you must find him not guilty." Formerly, in most of the courts of this country as well as England,-and in some of the courts the rule continues to prevail,-a defendant on trial, charged with a criminal offense, was required to overcome the presumption of law against him by the same degree of proof as in civil cases; that is, that a defendant or party against whom the presumption of law arose must overcome or remove such presumption to the satisfaction of the jury. And in many cases it is held that this must be done affirmatively by a preponderance of the evidence. Without discussing or questioning the correctness of the rule in civil trials, the question for consideration now is whether it is consistent with the rights of a defendant when tried upon a criminal charge. To authorize a conviction, the evidence must be such as to establish guilt beyond a reasonable doubt; and to do this every element which is a necessary constituent of the offense must be established beyond a reasonable doubt. The presumptions of innocence are with the defendant, not only in the beginning of his trial, but throughout. The law raises certain presumptions from the use of a deadly weapon. The principle of law which declares that certain presumptions arise from certain facts is not in conflict with the presumption of innocence of the defendant. Proof of certain facts raises a presumption which overcomes the presumption of his innocence, and must prevail, in the absence of countervailing evidence. Where facts are in evidence which, if alone, would raise the presumption of guilt, and they are accompanied with and a part of other facts which repel or annul such presumption of guilt, then no such presumption will arise. Can it make any difference, in principle, whether the...