Kilgore v. State

• Decision Date: 23 December 1899
• Citation: Kilgore v. State, 124 Ala. 24, 27 So. 4 (Ala. 1899)
• Parties: KILGORE v. STATE.
• Court: Alabama Supreme Court

27 So. 4

124 Ala. 24

KILGORE v. STATE.

Supreme Court of Alabama

December 23, 1899

Appeal from circuit court, Fayette county; S. H. Sprott, Judge.

John Kilgore, convicted of murder in the second degree, appeals. Reversed.

The record contains the following recital as to the arraignment of the defendant: "March 16, 1899. This day came W. R Oliver, solicitor who prosecutes for the state, and the defendant in person and by attorney, who, being arraigned on the indictment herein, charging him with murder, for answer thereto says he is not guilty. The state, by its solicitor the defendant in open court consenting thereto, waives capital punishment, and the court sets Wednesday, the 22d day of March, 1899, for the trial of said case." It is not shown in the record that there was a special venire drawn for the trial of the cause, or that the defendant was served with a copy of the special venire from which to select the jury. Upon the cause being called, the bill of exceptions recites that: "The state announced 'Ready for trial.' The defendant moved for a continuance on the ground of the absence of several of his witnesses, who had been regularly subp naed, but the court required the defendant to prepare showings for said witnesses, which being done, the same were admitted by the state, subject to legal exception, whereupon the court required defendant to go to trial; to which action defendant excepted." The facts and circumstances of the killing are sufficiently stated in the opinion.

The defendant, after having testified as a witness in his own behalf, offered to introduce in evidence a showing as to what James Shoultz, one of his witnesses, who was absent, would testify. On this showing it was stated that the defendant would prove by said James Shoultz, if present, "that he was in company with the defendant shortly before the time deceased was killed, and that William Fulton, deceased attacked defendant with a knife, and abused him considerably." The solicitor asked the defendant's counsel if this statement was in reference to the same fuss testified to by the other witnesses as having taken place in the woods about an hour or so before the killing, and, upon being told that it was not the same fuss, but it was had at a different time and place, and prior to the fuss referred to the state objected to the introduction of such testimony as set out in the showing, on the ground that the defendant could not go into the particulars of a previous difficulty and that such testimony was illegal and irrelevant. The court sustained the objection, refused to allow the introduction of such testimony, and to this ruling the defendant duly excepted. The defendant then offered to introduce a showing as to what M. J. Kilgore, an absent witness, would testify, which showing was as follows: "M. J. Kilgore would testify, if present, that a short time before the killing occurred the deceased passed the house of defendant, cursing, and singing dirty songs, in which profane language was used, and this was done in a very defiant manner." The state objected to the introduction of this testimony, on the ground that it was irrelevant, illegal, and immaterial. The court sustained this objection, and to this ruling the defendant duly excepted. In rebuttal the state introduced witnesses, each of whom it asked if he knew the general reputation of the defendant in the community in which he lived, and, upon each of the witnesses answering that he did, he was then asked what was that general reputation. The defendant separately objected to each of these questions, on the ground that a sufficient predicate had not been laid for the introduction of such testimony, and that it was illegal, irrelevant, and immaterial. The court overruled each of these separate objections, and to these rulings the defendant separately excepted. Each of the witnesses answered that the defendant's general reputation was bad.

The court, at the request of the state, gave to the jury the following written charges: (1) "The court charges the jury that in case of homicide the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence which proves the killing shows, also, that it was perpetrated without malice; and, whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts in evidence, there can be no conviction for a less degree of homicide than murder." (2) "The court charges the jury that, before the jury can acquit the defendant on the ground of self-defense, three essential elements must concur: First. The defendant must be without fault in bringing on the difficulty, and must not be disregardful of the consequences, in this respect, of any wrongful word or act. Second. There must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present imperious, impending necessity to shoot, in order to save himself from great bodily harm. Third. And there must have been no other reasonable mode of escape by retreat, or by avoiding the combat, with safety." (3) "The court charges the jury that if the defendant, in Fayette county, and before the finding of this indictment, purposely killed the deceased, William Fulton, by shooting him with a gun, with a wickedness or depravity of heart towards the deceased, and the killing was determined even a moment before the shooting was done, the defendant is guilty of murder in the first degree." (4) "The court charges the jury, to make the plea of self-defense available, the defendant must be without fault. And, whether the necessity to take the life of the deceased was real or only apparent, if brought about by the design, contrivance, or fault of the defendant, he cannot be excused on the plea of self-defense." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If the jury believe from the evidence that the prisoner killed Wm. Fulton at a time when he had a reasonable grounds to apprehend a design on the part of Fulton to take his life, or to do him great personal injury, and that there was immediate danger of such design being accomplished, the killing was justifiable, and the defendant should be acquitted." (2) "I charge you, gentlemen of the jury, that if you believe, from all the evidence in this case, that at the time of the killing the defendant entertained an honest belief in the existence of the necessity to take life, and the circumstances surrounding him at the time were such as to impress a reasonable man under the same state of facts with the belief of his imminent peril, and of an urgent necessity to take the life of his assailant, then you cannot find the defendant guilty." (3) "If the jury believe, from all the evidence in this case, that at the time of the killing the defendant would probably have increased his peril or danger by retreating, then the defendant would not, as a matter of law, be required to retreat." (4) "I charge you, gentlemen of the jury, that if you believe, from all the evidence in this case, that the deceased had threatened the life of the defendant, and that these threats had been communicated to the defendant before the killing, you may look to same as tending to show that the defendant had reason to apprehend danger to life or limb." (5) "I charge you, gentlemen of the jury, that the burden of disproving the plea of self-defense is on the state." (6) "It makes no difference whether or not the deceased had a concealed weapon about his person at the time of the killing, if his acts or demonstrations were of such a nature as to produce an impression on a reasonable mind that deceased was armed, and was in a position to carry his acts or demonstrations into execution by the use of a deadly weapon, the defendant had a right to take the life of the deceased in order to protect his own, if he could not have retreated without danger of great bodily harm." (7) "I charge you, gentlemen of the jury, if, upon all the evidence, the jury have a reasonable doubt whether he acted in self-defense or not, he is entitled to the benefit of the doubt, and to an acquittal." (8) "The necessity to take life that will be justifiable need not be actual. It is sufficient if the circumstances surrounding the parties at the time be such as to impress the mind of the defendant with a reasonable belief that the necessity is impending; and if the circumstances were such at the time of the killing as to create a reasonable impression and belief in his mind that the deceased was about to take his life, or that he would, if...