Johnson v. State
| Decision Date | 16 January 1912 |
| Parties | JOHNSON v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Winston County; Travis Williams, Special Judge.
Luther Johnson was convicted of murder in the second degree, and he appeals. Reversed and remanded.
The part of the oral charge referred to in the opinion is as follows: "In order to justify the killing of a human being under self-defense, the law says that certain things must be proven to you by all the evidence in the case to your satisfaction." The following is charge 22: "I charge you that, if there is a probability of the defendant's innocence, you must acquit him."
James J. Ray, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The defendant was indicted and tried for murder in the first degree and convicted of murder in the second degree.
The fatal difficulty occurred at an entertainment or "party" of a public nature, given at the home of one Rowe, which was attended by the two daughters of the deceased. The defendant started to accompany the daughters of deceased from the place of entertainment to their home, when a difficulty arose between the father and the defendant, resulting in the fatal shooting of the former by the latter. While there is no positive evidence showing that the defendant was responsible for the daughters of the deceased going to the entertainment or dance in opposition to his wishes, it is manifest that the father held such a belief, and the difficulty started by the father's offering objection to the defendant accompanying his daughters, or one of them, home from the dance. The evidence is in conflict as to practically all of the principal particulars relating to the difficulty resulting in the killing. The evidence of the state tends in general to show that, upon the father peaceably and quietly protesting against the defendant's escorting his daughter home, the defendant persisted, and almost immediately, and without provocation, assaulted the father by shooting him with a pistol three times, inflicting a fatal wound from which death ensued in a few minutes. The evidence for the defense was to the effect that the deceased accused the defendant of surreptitiously taking his daughters, or being the cause of their going, to the dance, applied a vile epithet to defendant and attacked him with a knife, backing him up against a fence, whereupon the defendant, in self-defense, shot the deceased.
The defendant being tried on an indictment charging murder in the first degree, it was necessary that the provisions of the jury law (Acts 1909, pp. 305, 317-319, § 32), applicable to a person on trial for a capital felony, be complied with. No order is shown by the record to have been made, as required by the...
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