Holmes v. State
Decision Date | 08 February 1894 |
Citation | 14 So. 864,100 Ala. 80 |
Parties | HOLMES v. STATE. |
Court | Alabama Supreme Court |
Appeal from circuit court, Clay county; N. D. Denson, Judge.
Archie Holmes was indicted and tried for the murder of one Henry Mann, and was convicted of murder in the second degree, and sentenced to the penitentiary for 10 years. Affirmed.
The evidence as to the particulars of the difficulty in which the deceased was killed, and how it arose, was in conflict. The evidence for the state tended to show that the defendant and his brother, Thomas Holmes, and the deceased and his three sons, were coming from their work on the road; that Jim Mann a son of the deceased, and Thomas Holmes, a brother of the defendant, got into a quarrel; that Thomas Holmes was charged with bringing on this difficulty, and that, after the passage of several quarrelsome words, the said Thomas Holmes struck at Jim Mann with his hoe; that Henry Mann (the deceased) ran up, and threw his hoe under the hoe of Thomas Holmes catching the blow as it came down; and that, while standing there, with their hoes locked, the defendant ran back about 10 or 15 feet, and struck Henry Mann with the blade of an axe, from which blow he died. The testimony for the defendant tended to show that Jim Mann was at fault in bringing on the difficulty, and that, while said Thomas Holmes and Jim Mann were standing with their hoes locked, the deceased ran up and struck the said Thomas Holmes in the head with his weeding hoe, knocking said Thomas Holmes to his knees; and that, as he raised the hoe, about to strike him again, the defendant ran back to where they were fighting, and struck the said Henry Mann with an axe.
During the examination of one of the witnesses for the state the solicitor asked him the following question: "Do you know of any bad feeling between defendant and deceased prior to the difficulty?" The defendant objected to this question, and duly excepted to the court's overruling his objection. Upon the witness answering, "I know there was bad feeling between the defendant and deceased prior to the difficulty," the defendant moved to exclude this answer and, his motion being overruled by the court, duly excepted. During the examination of another witness, and after he had described the hoe which the deceased had as "an ordinary weeding hoe, with a pine handle, five or six feet long fastened in the eye of the hoe," the defendant's counsel asked the witness to state "whether or not said hoe that Henry Mann had was of such weight and strength as that he could have killed a man within striking distance." The state objected to this question, and, the objection being sustained by the court, the defendant duly excepted.
Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (a) "If the jury believe from the evidence that defendant struck the fatal blow when there was a present, pressing necessity to strike in order to save the life of his brother, or to save his brother from great bodily harm, then the law casts upon the state the burden of showing beyond reasonable doubt that defendant's brother was at fault in bringing on the difficulty." (b) (c) ...
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... ... This court has strenuously insisted upon, and ... vigorously enforced, the doctrine that the plea of ... self-defense is not available to a defendant who is not free ... from fault in the creation of a necessity to take the life, ... or to do grievous bodily harm to another. Holmes v ... State, 100 Ala. 80, 14 So. 864. In Johnson v ... State, 102 Ala. 19, 16 So. 105, it is said: "This ... doctrine is too important, too conservative of human life and ... of good order, to allow it to be frittered away." And ... this was said in commenting on an instruction ... ...
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...an erroneous ruling. There was no error in the refusal of the court to give said charge. Sullivan v. State (Ala.) 15 So. 264; Holmes v. State (Ala.) 14 So. 864; Webb v. State, Id. 865; Gibson v. State, 89 Ala. 121, 8 So. 98. 8. The remaining charges asked and refused ignored the duty of ret......