Lewis v. State
| Decision Date | 28 November 1889 |
| Citation | 88 Ala. 11,6 So. 755 |
| Parties | LEWIS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Elmore county; JOHN B. TALLY, Judge.
The defendant, appellant here, was indicted for murder, and was tried and convicted of murder in the second degree. The state introduced evidence tending to show that in May, 1888, the defendant killed one Lizzie Story in said county, and before the finding of the indictment, by stabbing her with a knife without provocation. After the state had introduced its testimony and the defendant had closed her testimony, the state introduced another witness, to prove certain threats made by the defendant against the deceased. The defendant objected to the introduction of this witness, because it was not in rebuttal of any evidence introduced by her. The court overruled this motion of the defendant, and the defendant duly excepted to such ruling of the court. The court of its own motion gave to the jury the charge set out in the opinion of the court, to which the defendant excepted. The defendant requested the court in writing to give the following charge "The burden of proof rests on the state, as well as to the right of self-defense as to any other constituent of the offense; and, if the evidence believed by the jury fails to convince them beyond a reasonable doubt of defendant's guilt, they must acquit." The court refused to give this charge, and the defendant thereupon reserved an exception.
W L. Martin, Atty. Gen., for the State.
The order of the introduction and examination of witnesses is, at least to a very large extent, controlled by the discretion of the presiding judge; and his action in allowing a departure from the usual and regular course of calling witnesses and adducing testimony is not revisable, except, perhaps, where it affirmatively appears that some substantial right of the party complaining has been prejudiced thereby. The exception of the defendant below to the introduction by the state, and examination as to original matter, of the witness Williams after the close of testimony for the defense cannot be sustained. Towns v. Riddle, 2 Ala. 694; Gayle v Bishop, 14 Ala. 556; Hutchins v. Childress, 4 Stew. & P. 34; Borland v. Mayo, 8 Ala. 104; Bell v. State, 74 Ala. 420.
A necessity superinduced by the party who acts under its compulsion cannot be relied on by him to excuse or justify his conduct; and, applying this principle to the law of homicide, it is...
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