Henson v. State

• Decision Date: 12 January 1899
• Parties: HENSON v. STATE.
• Court: Alabama Supreme Court

25 So. 23

120 Ala. 316

HENSON v. STATE.

Supreme Court of Alabama

January 12, 1899

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

John Henson was convicted of manslaughter, and he appeals. Affirmed.

On the trial of the cause, the state introduced as a witness one John Taylor, who testified that he was present at a dance at the house of one Mollie Burns, in Walker county, when John Henson, the defendant, shot and killed Dan Hall; that on the night of said dance there was a disturbance in the yard between the defendant and some one, not known to the witness about some whisky; that Henson went into the house, and said that some one, cursing him, had stolen his whisky; and that thereupon Dan Hall, taking hold of him, asked him if he meant that he had stolen it, to which Henson replied that he did not; that thereupon Hall shoved Henson back, and said "Don't talk so big about it;" that Henson then shot, whereupon Hall took hold of a big country-made chair and struck Henson with it; that then Henson shot twice more, one of the last shots taking effect in the body of Hall, producing his death. On the cross-examination of this witness, he testified that he had gone to the place of the killing that night with Hall. He was then asked this question: "Did not Dan Hall, the afternoon of the day he was killed, say to you, while on the way to the dance, that he was 'going down there one more time to raise h___l, *** and fan out the crowd?"' The state objected to this question, upon the grounds that it was too general, and the threat was not communicated. The court sustained the objection, and the defendant duly excepted. The evidence for the defendant tended to show that the killing was in self-defense; that Hall had struck the defendant with a heavy, home-made chair twice, before he fired upon him. The defendant introduced, as a witness, one Albert Fisher, who testified that he was present at the house of Mollie Burns at the time Hall was killed by the defendant; and, after testifying as to the dispute between Hall and the defendant, he stated that Hall pushed Henson, and struck him with his fist, and picked up a chair and struck him, and witness turned away, and stepped outside; that he was standing in the door; that he did not see Henson shoot Hall, but heard the three shots of the pistol after Hall struck Henson, and after witness turned to step into the yard. The solicitor asked this witness, on cross-examination, the following question: "Did you tell Americus Coker, at the preliminary trial, next day after the killing, that you were not in the house, and did not see the shooting; and that you knew Henson was going to kill Hall, and you turned away to keep from seeing it?" The defendant objected to this question, because it called for incompetent and illegal evidence, and was an attempt to contradict the witness about an immaterial matter. The court overruled the objection, and the defendant duly excepted. The witness answered that "he did not remember whether he made that remark to Mr. Coker; but he may have made it." In rebuttal, the state introduced as a witness Americus Coker, and the solicitor asked him the following question: "Did Albert Fisher tell you, at the preliminary trial, that he was not in the house, and did not see Henson shoot Hall; and that he knew Henson was going to kill Hall, and he turned away to keep from seeing it?" The defendant objected to this question, on the ground that it called for immaterial, illegal, and incompetent evidence, and was an attempt to contradict the witness Fisher on an immaterial question, and that Fisher did not deny it. The court overruled the objection, allowed the question to be asked and answered, and to this ruling the defendant duly excepted. In the court's oral charge to the jury he instructed them, among other things, as follows: "If you find the defendant guilty of manslaughter in the first degree, you may fix his punishment at hard labor for the county for a period of not less than one nor more than two years." To the giving of this charge the defendant separately excepted, and also excepted to the court's refusal to give each of the following charges, requested by him: (1) "If the defendant was in fault in bringing on the difficulty, he cannot plead self-defense." (2) "If the jury believe, from the evidence, that the defendant in good faith abandoned the difficulty in the yard, and was free from fault in bringing on the difficulty in the house, the defendant may invoke the law of self-defense." The verdict of the jury was as follows: "We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at hard labor for the county of Walker for one year."

Norvell & Smith and Coleman & Bankhead, for appellant.

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

SHARPE J.

The threat on the part of the deceased which was sought to be shown by the witness Taylor, if it can be classed as a threat, was not shown to have reference to the defendant and,...