Keith v. State

• Decision Date: 01 December 1892
• Citation: 97 Ala. 32,11 So. 914
• Parties: KEITH v. STATE.
• Court: Alabama Supreme Court

11 So. 914

97 Ala. 32

KEITH v. STATE.

Supreme Court of Alabama

December 1, 1892

Appeal from circuit court, Walker county; JAMES J. BANKS, Judge.

Howard Keith was convicted of manslaughter in the first degree, and appeals. Reversed.

The evidence in behalf of the state tended to show that on the day of the killing, and immediately preceding the difficulty the defendant went into the house occupied by the deceased and, upon being asked by the deceased "if he wanted to make a pathway out of his house," replied "that he would make a pathway out of him;" that the defendant then going on through the house, was followed by the deceased a short distance, and, upon being approached by him, the defendant turned, and they immediately got into a rencounter and the deceased was soon heard to exclaim, "he has cut me." The evidence in behalf of the defendant tended to show that deceased came upon him with a knife in his hand, and, in the scuffle which ensued, he, the defendant, getting possession of the knife, inflicted the fatal blow when the deceased reached his hand back of him. The defendant then requested the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb, and could not retreat in safety, or without putting himself at a disadvantage, then the killing would not be wrongful, and it would be the duty of the jury to acquit him, unless the jury further believe from the evidence that the defendant was at fault in bringing on the difficulty." (2) "It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life, but, if the jury are satisfied, from all the evidence in the case, that the circumstances attending the striking the fatal blow were such as to impress Howard Keith, the defendant, with a reasonable belief that at the time of striking the blow it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty."

Coleman & Sowell, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted and tried for murder in the second degree, and convicted of manslaughter in the first degree. The exceptions reserved, and which are assigned as error, are upon the refusal of the court to instruct the jury as requested, in writing, by the defendant. The first charge refused reads as follows: "If the defendant, at the...