Henson v. State

• Decision Date: 25 May 1897
• Parties: HENSON v. STATE.
• Court: Alabama Supreme Court

22 So. 127

114 Ala. 25

HENSON v. STATE.

Supreme Court of Alabama

May 25, 1897

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

John Henson was indicted and tried for manslaughter, and was convicted of manslaughter in the first degree, and sentenced to two years' imprisonment in the penitentiary, and he appeals. Reversed.

Upon the trial of the cause the evidence for the state tended to show that, upon the defendant saying that some one, using a very opprobrious epithet in reference to such person, had stolen his whisky, Dan Hall asked him if he meant that he had stolen it; that defendant said, "No," and used the same epithet towards the person who had; that, upon Dan Hall pushing the defendant, and telling him not to talk that way to him, the defendant shot and killed him. The solicitor asked the witness Taylor, who had testified to these facts the following question: "Did the defendant have the pistol concealed about his person from ordinary observation?" The defendant objected to the question the court overruled his objection, and the defendant duly excepted. The witness answered: "Yes; the pistol was concealed." The solicitor then asked the witness the following question: "Did you see the defendant shortly before the difficulty, and at the time of the difficulty, and did he have on a coat, and was there any pistol exposed to view?" The defendant objected, on the grounds that the defendant was on trial for manslaughter, and that having a concealed weapon was immaterial, irrelevant, and foreign to the issue. The court overruled the objection, and the defendant duly excepted, and the witness answered that the defendant did not have on a coat, and that he did not see the pistol until the killing occurred. The testimony for the defendant tended to show that Dan Hall, the deceased, entered the house where the defendant was dancing, and, cursing him asked him if he meant to say that he had stolen his whisky that the defendant said, "No;" that Hall cursed him again, and, pushing him back in the corner of the house struck him with a chair; and that, as he went to strike him the second time, the defendant fired upon him. The bill of exceptions contains the following statement as to certain evidence: "The solicitor, on cross-examination, asked the witness this question: 'Was the fight in Molly Burns' house?' The defendant objected, and the court overruled the objection, and defendant excepted. Witness answered, 'Yes,' and that there were three women present. The solicitor asked the witness which one of the women was John Henson's partner, and 'Was it not that long, tall, slim one, named Josie?' The defendant objected, the court overruled the objection, and defendant excepted; and witness said, 'Yes."' Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the charge as asked: "The burden is not on the defendant to prove that he was not at fault in bringing on the difficulty; but if there is a...