Linehan v. State

• Decision Date: 10 January 1899
• Citation: 120 Ala. 293,25 So. 6
• Parties: LINEHAN v. STATE.
• Court: Alabama Supreme Court

25 So. 6

120 Ala. 293

LINEHAN v. STATE.

Supreme Court of Alabama

January 10, 1899

Appeal from circuit court, Walker county; James J. Banks, Judge.

John Linehan was convicted of manslaughter, and he appeals. Reversed.

The evidence introduced by the state tended to show that in Morgan county, Ala., before the finding of the indictment the defendant, John Linehan, killed Allen Oakley, by shooting him with a pistol, and then tended to show that the killing was done under the following circumstances: One George Fram was to have a trial before the mayor of Carbon Hill. Oakley was the marshal of said town. The case was continued, and when Oakley walked out on a small porch in front of the mayor's office, Linehan asked him why the trial had been put off. Oakley replied that he was running that court whereupon Linehan told him that "he was running it in the hell of a way." Linehan stepped down from the porch and put his hand in his hip pocket. Oakley told him to go off; that he wanted peace. Linehan then started up the street, and said, "Damn you, if you have not got peace, I will give it to you." Oakley told him that he must curse him, and stepped down from the porch. When Linehan was about 15 feet from Oakley, he used a very opprobrious epithet towards him, and drew his pistol, and held it by his side; and, as Oakley advanced to within 8 or 10 feet from Linehan, Linehan turned, and shot at Oakley. Oakley then turned to leave, and took two or three steps, when Linehan shot again, striking Oakley in the shoulder blade, from which would he died. The evidence for the defendant tended to show that, after Linehan used the opprobrious epithet to Oakley, Oakley stepped down from the porch, and put his hand to his hip pocket, and started towards Linehan, pulling and jerking at something in his pocket, and that then it was that Linehan fired. The facts pertaining to the rulings of the trial court upon the evidence which are reviewed on the present appeal are sufficiently stated in the opinion. The bill of exceptions recites that, "during the examination of the defendant, the solicitor stood up in front of him, and near to him, and asked defendant 'if Oakley did not tell him to go on off, just before the shooting, and motion this way.' The solicitor had both hands raised, and motioned to go away." The defendant objected to the manner of the solicitor. The court overruled the objection, allowed the solicitor to proceed in the same manner, and to this ruling the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they will find the defendant not guilty." (2) "The court charges the jury that, if the defendant relies on a justification of his acts partly by threats made against him by Allen Oakley before the killing, then such threats will be a justification of the killing, if the jury find from the evidence that deceased, at the time of the killing, was manifesting an intention of carrying such threats into execution, by a positive act then done, or that, from the acts of Allen Oakley at the time of the killing, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against defendant, and there was no reasonable means of escape without increasing the danger, and the defendant was not at fault in bringing on the difficulty." (3) "The court charges the jury that a person charged with murder, and who is not at fault in bringing on the difficulty, who seeks to justify himself on the ground of threats against his own life, is permitted to introduce such threats so made, and the same should be regarded as affording a justification for the killing, if it be shown that at the time of the homicide the person killed, by some act done, manifested an intention to execute the threats so made, or reasonably appeared to defendant to be so doing, if said threats had been previously communicated to this defendant, and it is shown that there was no reasonable means of escape without increasing the peril." After the return of the verdict, and before sentence, motion was made by the defendant in arrest of judgment, upon the grounds as stated in the opinion. This motion was overruled, and the defendant duly excepted.

Coleman & Bankhead, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

DOWDELL J.

The defendant was tried and convicted of manslaughter in the second degree, under an indictment for murder. Motion was made by the defendant in arrest of judgment, "on the ground that the defendant, as shown by the record in this case, was not on trial for manslaughter in the second degree." This motion was overruled by the court, and we have no doubt of the correctness of the ruling. There is nothing in the contention that a conviction for manslaughter in the second degree cannot be had under an indictment for murder. The charge in the indictment of the higher offense of murder includes the lower grades of...