Hill v. State

• Court: Supreme Court of Alabama
• Writing for the Court: DENSON, J.
• Citation: 146 Ala. 51,41 So. 621
• Decision Date: 31 May 1906
• Parties: HILL v. STATE.

41 So. 621

146 Ala. 51

HILL
v.
STATE.

Supreme Court of Alabama

May 31, 1906

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

"To be officially reported."

Cleveland Hill was convicted of manslaughter, and he appeals. Affirmed.

The following written charges were requested by the defendant, and refused: "(B) The court charges the jury that in weighing the testimony of any witness you will look to all the facts and circumstances in evidence, including any evidence, if any, tending to show that such witness has sworn falsely intentionally about any fact in the case. (C) The court charges the jury that a reasonable doubt is such a doubt as would cause a careful, prudent man to hesitate before he acts; and if there is any such doubt in your minds, or in the minds of any one juror, you must acquit the defendant or have a mistrial. (D) It was unlawful conduct on the part of John Henson to have a pistol concealed about his person and to talk of killing somebody before the sun went down, if he did so have said pistol and have said talk. * * * (F) The fact, if it be a fact, that the deceased had a pistol concealed about his person, is a circumstance to which the jury may look, in connection with all the other facts and circumstances in evidence, in determining the issue in this case. (G) The fact that the defendant had cartridges in his pocket, if he had cartridges in his pocket, together with such language as may have been shown by the evidence, in connection with all the facts and circumstances in evidence, in determining whether the defendant is guilty or not. * * * (I) The jury have the right to look at the evidence tending to show that the deceased was carrying a pistol about his person and making threats of doing someone harm before the sun went down, in connection with all the other circumstances in evidence, in determining whether or not the deceased made demonstration indicating a purpose of taking the life of the defendant, or of doing him some grievous bodily harm."

John A. Lusk, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON, J.

The indictment charges manslaughter in the first degree. From a judgment of conviction the defendant appealed.

The killing occurred on a Sunday afternoon in June, 1904. The defendant, the deceased, and others, all barely grown and hardly in the 20's had been attending singing exercises at Mobbs' Schoolhouse. After the exercises were over they congregated in the road near the schoolhouse and engaged in "friendly scuffles and play," out of which grew the unfortunate difficulty in which the deceased lost his life at the hands of the defendant. The deceased was a cripple. In his infancy his feet were so badly burned that his toes and the front part of his feet were of necessity amputated, leaving him only stubs to walk on. He wore boots that indicated the shape of his stubs--the condition of his extremities; and the evidence tended to show that he could not, without holding to something, be still while standing erect, but that he could walk and remain erect so long as he was moving. Some of the evidence tended to show that defendant stabbed the deceased once while deceased was retreating from the defendant, and that defendant overtook him, while the defendant's evidence tended to show that he was retreating and the deceased was pursuing him. There was evidence which tended to show self-defense, and the defense relied on was essentially that of self-defense. The appellant's counsel has made an assignment of errors on the record, and we shall consider the cause for the most part with respect of the errors assigned.

Evidence showing the condition of the deceased's feet, and the admission of the boots as evidence, was allowed over the objection of the defendant, and his motion to exclude the evidence was overruled. These rulings of the court against the defendant were excepted to and are presented for review by the grounds in the assignment of errors numbering 1 to 13, inclusive, and 28, 29, and 38. "The test of the relevancy of evidence," it is said by Wharton, is "whether it conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue." 1 Wharton on Ev. § 20. And Elliott, in his work on Evidence, says: "As a general proposition it may be said that any evidence that tends in any reasonable degree to establish the probability or improbability of a fact in issue, no matter how slight its weight may be, is relevant." Elliott on Ev. §§ 144, 145, 147; Whitaker's Case, 106 Ala. 30, 17 So. 456; Governor v. Campbell, 17 Ala. 566, 574. In this case the important and turning issue on the trial was whether the defendant, in taking the life of the deceased, did so in self-defense, as it is defined by the law.

An important inquiry in respect of this issue was as to the necessity for taking the life of the deceased. It must have been an imperious necessity, and if the defendant could have avoided the taking of life by retreating, it cannot be said in law that such necessity existed, nor could it be said to exist if the defendant could have overcome the deceased otherwise than by taking his life The tendency of the estate's evidence was that the deceased was without firearms, and none of the evidence tended to show that he ever exhibited firearms or weapons of any kind during the difficulty. Suppose the deceased had been without legs; could it be doubted for a moment that evidence of the fact would have been relevant for the purpose of showing that the defendant could have easily escaped injury at his hands by keeping out of his way? Or, suppose the deceased had been a man of perfect and powerful physique, it could not be doubted, under the tendencies of the evidence for the defendant in this case, that this fact would have been [41 So. 623] competent as tending to support the theory of self-defense--that a necessity existed for defendant to resort to a...