King v. State

• Decision Date: 06 February 1923
• Docket Number: 7 Div. 814.
• Citation: 96 So. 636,19 Ala.App. 153
• Parties: KING v. STATE.
• Court: Alabama Court of Appeals

96 So. 636

19 Ala.App. 153

KING v. STATE.

7 Div. 814.

Court of Appeals of Alabama

February 6, 1923

Rehearing Denied March 6, 1923.

Appeal from Circuit Court, DeKalb County; W. W. Haralson, Judge.

Gus King was convicted of murder in the second degree, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Gus King, 96 So. 639.

The following charges were requested by defendant and refused by the court:

"(1) I charge you that, if you believe from the evidence in this case that at the time the difficulty occurred the defendant was in the public road driving his mules to a wagon, then he was under no duty to retreat from the road or leave his wagon.

"(2) I charge you that, if you believe from the evidence in this case that at the time the difficulty took place the defendant was going along the public road driving his wagon, and if he was free from fault in bringing on the difficulty, then he was under no duty to flee from the road or his wagon, before he struck in his own defense.

"(3) I charge you that, if you believe from the evidence that the defendant was free from fault in bringing on the difficulty, and if he was in the public road with his wagon, and if you further believe that at the time he fired the shot he was menaced by the deceased in a dangerous and threatening attitude in such a manner as to lead a reasonably prudent man so situated to honestly believe that he was in imminent peril of life or great bodily harm, then the defendant was under no duty to flee from the public road and his wagon, before striking in his own behalf.

"(4) I charge you that the defendant is presumed to be a man of general good character until the contrary is shown by the evidence. When, however, the defendant becomes a witness in his own behalf, the state may show it, if it can, that he is a man of general bad character; there is testimony here as to his character for truth and veracity, but it is limited to truth and veracity, and the presumption of general good character is still with the defendant, and you will so consider it."

"(6) If defendant was free from fault in bringing on the difficulty, did nothing or said nothing to encourage it, and there was no reasonable mode of escape without increasing his peril, then no duty rested upon the defendant to stand and take the assaults of deceased, but he had the right to stand his ground and return blow for blow, even to the taking of the life of deceased, and defendant would not be guilty."

"(8) I charge you, gentlemen of the jury, that in determining the guilt or innocence of the defendant you have a right to take into consideration all the surrounding circumstances, the distance from where the deceased was shot at the rock wall up the road where the buggy and wagon passed, the distance, if any, that the deceased followed defendant, the side of the road where the deceased was killed, the relative position each was in at the time of the killing; gentlemen of the jury, all this is with you.

"(9) I charge you, gentlemen of the jury, that in this case the law presumes the defendant to be a man of good general character.

"(10) I charge you that the defendant had a legal right to carry a pistol for his protection if his life had been threatened.

"(11) I charge you that, if you believe from the evidence that Webster had the brake pole and was striking at King with it, then the fact that King shot him with a pistol which was concealed up to that time does not make any difference in this case."

Isbell & Scott, of Ft. Payne, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant admittedly killed Daniel Webster, the person named in the indictment, by shooting him with a pistol. For this act he was indicted by the grand jury and charged with the offense of murder in the first degree. Issue was joined upon his plea of not guilty, the trial resulting in a verdict by the jury as follows:

"We the jury find the defendant guilty of murder in the second degree and fix his punishment at imprisonment in the penitentiary for fifteen years."

Judgment and sentence based upon this verdict followed, from which defendant appeals.

The defendant relied upon self-defense as a justification of his act in killing Webster.

A large number of witnesses were examined upon the trial of this case, but the trial throughout proceeded with but few objections and exceptions. We will discuss these questions in the order in which they appear in the record.

The testimony in the record tends to show that the defendant had a brother-in]law by the name of Walker; and that Walker had committed an assault and battery against Mrs. Walker; that the defendant as stated by him had been assisting in a prosecution of Walker for the mistreatment of his wife; and that the deceased, Daniel Webster, and Roy Copeland, one of the principal witnesses for the state, together with other parties, had signed a petition to relieve Walker from complying with the terms of the judgment in the criminal case against him, and for this reason ill feeling had arisen between the defendant and Webster, the deceased. It is evident that this matter was the real cause of the trouble leading up to the killing of Webster by defendant.

On recross-examination of defendant, and over his objection and exception, he was required to answer that he knew a man by the name of Bernard Fowler. The Solicitor then asked him:

"Now, didn't you tell him in a conversation at his mail box this side of Adamsburg about a week or ten days before the killing, when you were talking to him about the people who signed that petition for your brother-in-law, that if they didn't mind you would get some of the damn fellows yet?" To which he answered: "No, sir; I did not tell him that."

The Solicitor then asked him:

"Now, didn't you tell him just a few days before this happened-talking about those who signed that petition-that you would get some of the damn folks yet?" The defendant answered: "I never had any conversation with Fowler at his mail box. I did not say anything like that."

The witness Bernard Fowler was then introduced, and over the objection of the defendant testified:

"I know Gus King (the defendant). I had a conversation with him about a week or ten days before the killing of Daniel Webster, at my mail box this side of Adamsburg."

The Solicitor then asked this question:

"I will ask you if you had a conversation with him concerning the people who signed a

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