Hutcherson v. State
| Citation | 50 So. 1027,165 Ala. 16 |
| Parties | HUTCHERSON v. STATE. |
| Decision Date | 16 December 1909 |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.
Cora Hutcherson was convicted of murder in the second degree, and appealed. Reversed and remanded.
The oral charge of the court, excepted to, is as follows: "The defendant sets up self-defense in this case, and before she can avail herself of it she must reasonably satisfy you that her life was in danger, either real or apparent, and that she had no safe mode of escape." Charge 1, referred to, is as follows: "I charge that, when the wife is living with the husband in his house, his home is her home, and the law imposed no duty upon her to retreat to avoid a difficulty, even with her husband, if she was free from fault in bringing on the difficulty."
Hybart & Burns, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
The defendant was adjudged guilty of the murder (second degree) of her husband; the tragedy taking place within their common abode. The justification set up was self-defense. There was evidence tending to support this defense.
In argument to the jury, the representative of the state said: "Gentlemen of the jury, why didn't the defendant bring Dr. Mason here, and show you by him that he was doctoring her?" Seasonable objection and motion to exclude this statement were overruled. It appears that the defendant testified to Dr. Mason's professional attendance upon her, and that she was sick at the time of the killing. From the bill it appears that Dr. Mason's place of residence was Excel, Ala. It does not appear that this physician was not as accessible to the prosecution as to the defense. Under such circumstances as this record shows, the solicitor's quoted statement was improper, and should have been disallowed. Crawford v. State, 112 Ala. 1, 23, 21 So. 214; Bates v. Morris,
101 Ala. 282, 13 So. 138; Brock v. State, 123 Ala. 24, 26 So. 329.
The fact, if so, that deceased had, on other occasions, beat her, was properly excluded.
The part of the oral charge excepted to was erroneous.
Charge 1, given for the defendant, announced the law applicable to the nonduty of the defendant to retreat under the circumstances hypothesized.
For the error first indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
To continue reading
Request your trial
-
United States v. Peterson
...note 58, 162 U.S. at 508, 16 S.Ct. 864; Beard v. United States, supra note 45, 158 U.S. at 559-564, 15 S.Ct. 962; Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 1028 (1909); People v. Lewis, 117 Cal. 186, 48 P. 1088, 1090 (1897); De Vaughn v. State, 232 Md. 447, 194 A.2d 109, 112, 113 (1963......
-
State v. Hamric
...upon one who, free from fault in bringing on a difficulty, is attacked at or in his own dwelling or home. Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 138 Am.St.Rep. 17; State v. Turner, 95 Utah 129, 79 P.2d 46. Upon the theory that a man's house is his castle, and that he has a right to ......
-
Alabama Fuel & Iron Co. v. Williams
... ... said: "We object to that argument on the ground that it ... is improper." Counsel for the plaintiff stated: "I ... did not state it as a fact. I said perhaps it would ... not." Counsel for the defendant then stated: "I ... object to the argument as it was made, as being ... 471, 16 So. 538; Birmingham R. L. & P. Co., 175 Ala. 338, 57 ... So. 876; Forman v. State, 190 Ala. 27, 67 So. 583; ... Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 136 ... Am. St. Rep. 17; Ethridge v. State, 124 Ala. 106, 27 ... So. 320; Manley v. Birmingham R. L. & P ... ...
-
Jarrell v. State, 5 Div. 445.
... ... equally accessible to both parties. Brock v. State, ... 123 Ala. 24, 26 So. 329; Coppin v. State, 123 Ala ... 58, 26 So. 333; Forman v. State, 190 Ala. 22, 67 So ... 583; Jackson v. State, 193 Ala. 36, 69 So. 130; ... Crawford v. State, 112 Ala. 1, 21 So. 214; ... Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 138 ... [251 Ala. 56] Am.St.Rep. 17; Barnett v. State, 165 ... Ala. 59, 51 So. 299 ... Counsel for a party to whom a particular person is not ... available as a witness may comment on the failure of the ... other party to whom that person is ... ...