Jordan v. State

• Decision Date: 17 February 1887
• Citation: 1 So. 577,81 Ala. 20
• Parties: JORDAN and another v. STATE.
• Court: Alabama Supreme Court

1 So. 577

81 Ala. 20

JORDAN and another v. STATE.

Supreme Court of Alabama

February 17, 1887

Appeal from Montgomery city court.

Indictment for murder.

This case comes up on appeal to this court the second time. The appellants, Jule and Handy Jordan, two colored men, were under indictment for the murder of one Albert York, also a colored man. The homicide occurred at night, in the house of one Jerry Williams, in the county of Montgomery. The house consisted of two rooms, with a partition wall between, in which was a door connecting the two rooms, and, on the night of the difficulty, a party was being given at this house and, for the occasion, one of the rooms was designated as the "party-room," and the other as the "dancing-room." The evidence on the part of the state, among other things, tended to show that on the night of the difficulty appellant Jule Jordan, being at the party attempted to light a cigar, and, in doing so, put out both lights in the "party-room," leaving the room dark and thereupon one Sam Williams caught hold of one Mason Taylor, and jokingly said that he (Taylor) was the only one present who would steal anything; that Taylor became angry and Jerry Williams and the deceased, Albert York, took Taylor out of the room; that one Raoul, whose wife was giving the party, came outside, and began a quarrel with Taylor about taking people from the party; and appellant Jule Jordan came up, and, drawing a pistol, said, "I will put a light-hole through any one who strikes Mason Taylor." Whereupon Raoul, having a knife in his hand said, "Do you mean me?" and Jule Jordan, pointing his pistol at Raoul, replied, "D-n you, I'll shoot you if you move." Then Jerry Williams and the deceased quieted this difficulty, and, as they were returning to the house deceased took Jule Jordan's pistol from him, and gave it to one Warren Beasley, and subsequently, at request of deceased, said Beasley returned the pistol to Jule Jordan. Shortly afterwards, Jule Jordan came into the "party-room" with a stick in his hand, and Jerry Williams and deceased took the stick from him, and, while so doing, appellant Handy Jordan came up and said, "Turn Jule loose, or I will cut you up." Thereupon Jerry Williams told Handy they were not hurting Jule, and no more was then said. All this occurred about a half hour before the killing.

The appellants separately moved the exclusion of all the testimony in referenc to the difficulty with Mason Taylor, which motions the court refused, and the appellants separately excepted. The appellants then moved the exclusion of all the testimony preceding the remark by Jule Jordan about "putting a light-hole," etc., which motion was overruled, and they separately excepted. Appellants next moved the exclusion of all the testimony after the said remark of Jule Jordan, which the court refused, and appellants separately excepted. They then moved the exclusion of that portion of the testimony in reference to taking the stick from Jule Jordan, and what Handy said about cutting up some one. The court overruled the motion, and appellants separately excepted.

The evidence for the state further tended to show that deceased, after he had been shot by Jule Jordan, asked one Berry Johnson if he thought deceased would recover, and Johnson replied that he might. After this, and after a visit from a physician, deceased repeatedly said he thought he would die, and remarked to said Berry Johnson: "I am not drunk; I am sober; I am in my right senses. Jule shot me, and Handy cut me, and all for nothing." Appellants separately moved the exclusion of these declarations. The court overruled the motions, and appellants excepted.

The physician who attended the deceased testified that the pistol shot entered the deceased on the right side, just below the sixth rib, and came out on the left side, between the tenth and eleventh ribs. The solicitor, in the closing speech to the jury, stated that the ball came out of the deceased at a lower point on the left side than it had entered on the right side. To this statement the appellants separately objected, but the court refused to have the language withdrawn, and refused to instruct the jury that this language was not proper, and appellants separately excepted.

On cross-examination of Berry Johnson, a witness for the state, he was asked by appellant Handy Jordan whether he had a conversation with said Handy, to which he replied that he had. Thereupon Handy Jordan offered to prove by him that in said conversation Handy said to witness that he understood that he (Handy) was charged with cutting deceased, and asked witness if it was true; and witness replied, "George Raoul charges you with the cutting, and you had better leave;" and (pulling out a $20 gold piece) said, "I'll lend you the money to go on." To which Handy replied, "I've done nothing, and won't run away." The court, on the objection of the solicitor, refused to allow Handy Jordan to prove this conversation, and he excepted.

Said Handy also offered to prove by one Campbell, a white man, that said Campbell and Handy had been raised up together, and Handy had great confidence in said Campbell, and, on the evening of the day after the killing, Handy went to Campbell's house, and asked Campbell to go with him to Montgomery, to go on his bond, and Campbell told him he would do so but, on account of business, he could not for several days, and Handy then remained on Campbell's plantation until Campbell could get off to come with him to Montgomery. The court, on the objection of the solicitor, refused to allow this testimony to be given, and Handy excepted.

Said Handy then offered to show by his own testimony that on the morning after the difficulty, about daylight, he was informed at his house that he was charged with cutting the deceased, and immediately went over to where deceased was, and asked Berry Johnson if any such charge had been made. The solicitor objected to this testimony being given, the court sustained the objection, and Handy excepted.

Said Handy further offered to prove by his own testimony that Berry Johnson told him there was such a charge against him made by George Raoul, and that he had better run away, and that Berry Johnson offered him a $20 gold piece to use in going away. The solicitor objected to this being proved, the court sustained the objection, and Handy excepted.

The testimony of the state, as to the circumstances immediately attending the killing, tended to show that, about a half hour after the first difficulty, Mason Taylor became involved in a dispute at the fire-place, in the "dance-room," and deceased, who was playing the accordeon for the dance, went to him, and saying, "Mason Taylor, d-n you, I told you to stop this fussing," knocked said Taylor down. Thereupon Jule Jordan said, "You ought not to strike Mason Taylor," and deceased then approached Jule Jordon, but turned, and went out of the house. Soon afterwards deceased came back into the house, and started across the room in the direction of Jule Jordan, having no weapon in his hand. As deceased passed the fire-place, in moving towards Jule Jordan, Handy Jordan, who had a few moments before come into the room, cut the deceased in the right shoulder, and deceased turned his face towards Handy, and, as he did so, he was shot by Jule Jordan, who was standing near the rear wall of said room, and deceased died from the shot on the following afternoon. The physician testified that the knife wound was of little consequence, and was not fatal. Other witnesses, who dressed deceased after death, testified that the knife wound was discharging watery matter after the death of deceased.

The testimony of the appellants, as to what occurred at the time of the killing, tended to show that Jule Jordan said to the deceased, when the latter had struck Mason Taylor, "York, you ought to be ashamed of yourself for striking Mason Taylor that way," and deceased replied, "D-n it, if you take it up, I will give you some; I have wanted to fix you all night;" and then deceased started towards Jule, but was caught, and taken out of the house; that almost immediately afterwards deceased rushed back into the house, having in his hand a white-oak wagon standard about as large as a man's wrist, and about two feet long, and advanced rapidly towards Jule; that Jule retreated till he reached the back wall of the house, when deceased caught hold of him, and raised the stick in the attitude of striking, and Jule then shot him; that during this time Handy Jordan was in the other room, and came to the partition door, and inquired what the matter was. One witness for the state testified that Handy, in passing from the "party-room" to the "dance-room," in which the killing took place, said, "I'll cut the heart out of any man who interferes with Jule;" but, after this remark, went back to the "party-room" before the shooting.

The state introduced witnesses, who testified they were present at the former trial of this case, and that Jule Jordan, Dan Douglass, and Ebb Carter, on said trial, made different statements from those made by them on the present trial.

The foregoing is substantially all the testimony material to an understanding of the rulings of the court, and the charges given and refused, to which exceptions were taken by appellant, and which are here assigned as error.

The court, at the request of the solicitor in writing, gave the following charges.

"(1) When life is taken by the direct use of a deadly weapon, the law presumes that the killing was malicious, and casts on the defendant the onus of rebutting it, unless the evidence establishing the killing also shows circumstances of justification, excuse, or mitigation which overturn the presumption.

"(2) In...