Mann v. State

• Decision Date: 28 June 1902
• Parties: MANN v. STATE.
• Court: Alabama Supreme Court

32 So. 704

134 Ala. 1

MANN v. STATE.

Supreme Court of Alabama

June 28, 1902

Appeal from city court of Mobile; O. J. Semmes, Judge.

Charles B. Mann was convicted of murder in the second degree, and he appeals. Affirmed.

During the organization of the petit jury for the trial of the case George Stewart was drawn as a juror, and, in answer to the question propounded to him by the court, answered that he would convict on circumstantial evidence "if the evidence proved the crime beyond a doubt." Thereupon the solicitor asked said Stewart the following question "Suppose the evidence was such that while it left some doubt in your mind, still your mind was satisfied beyond a reasonable doubt, would you convict then?" The defendant objected to the solicitor asking this question, the court overruled the objection, and the defendant fully excepted. The said Stewart answered that the evidence could be strong enough for conviction. Thereupon the state challenged said Stewart peremptorily.

The bill of exceptions contains the following recitals as to the opening statement of counsel: "During the course of the opening statement of counsel, the defendant's counsel having stated what he expected the evidence would show as to the reasons which actuated the defendant at the time of the homicide, the solicitor in reply stated: 'The state expects the evidence to show that when the defendant was asked on habeas corpus trial as to what he had reference to when he told the deceased, "You must get down on your knees and apologize," he testified that he had reference to the deceased coming to his office and assaulting him with a knife, had reference to his calling him a son of bitch in the presence of a negro, and had reference to his drawing a pistol on him that evening.' The defendant moved to rule out statement upon the ground that the defendant has not testified and it is not known that he will testify, because the statement, if made, is not in the nature of a confession. The court denied the motion, and the defendant excepted, the court stating that he would tell the jury that they should pay no attention to the statements of counsel."

On the trial of the cause it was shown that David Dickson was mortally wounded at Monroe Park, a pleasure resort near the city of Mobile, in Mobile county, on Sunday evening, June 16 1901. The evidence for the state tended to show that said David Dickson was sitting in a pavilion with some friends when the defendant entered the pavilion and took a seat at a table some distance from the one occupied by Dickson; that between the table occupied by the defendant and the one where the deceased was sitting there was a table at which some actresses were sitting; that shortly after the defendant came in he called to one Tuttle, and asked him to come over to his table; that just as the defendant called a waiter returned some change to the actresses, and Dickson remarked "Lend me a dollar;" that thereupon the defendant rose from his table, and asked, "Who made that crack?" or "Who made that statement?" at the same time pulling his pistol from his hip pocket; that after the defendant rose with pistol in hand the said Dickson got up from the table where he was sitting and drew his pistol just after the defendant drew his pistol one Peter Burke Jr., who was near him, knocked the pistol out of his hand; that as the said Dickson advanced upon the defendant the latter pulled his coat open, and said, "Shoot me, you cowardly cur; you haven't the nerve to shoot;" that thereupon one Hill rushed up to Dickson, and took his pistol away from him, and tried to keep the defendant and the said Dickson from getting together; that as Dickson advanced towards the defendant the defendant backed off to where the pistol had been knocked from his hand, and picked up the pistol; that thereupon the defendant leveled the pistol upon Dickson, and said to him, "You must get down on your knees and apologize to me"; that Hill then said to the defendant, "Don't shoot, the man is unarmed and has no pistol"; that Dickson refused to apologize, and the defendant immediately shot him; that as soon as the first shot was fired Dickson rushed upon the defendant, and grappled him, and immediately two or three shots were fired by the defendant; that Dickson fell upon the defendant, and held him with arms outstretched, until some one came and parted them; that Dickson received two wounds in the difficulty from the effects of one of which he died on June 19th. There was evidence introduced showing that there was ill-feeling between the defendant and the deceased which had existed for some time.

The defendant, as a witness in his own behalf, testified that when he called his friend Tuttle to come over to his table he heard the remark made by some one at the table near by, "Lend me a dollar," which he considered an insult, as being a sarcastic way of accounting for his calling Tuttle to his table, it being his purpose to borrow money from him; and thereupon he rose from the table, and asked the question as to "who made that crack," or "who made that statement"; that at that time he did not know that the deceased was in the pavilion, but that as soon as he rose from the table the deceased rose also with his pistol in his hand; that after his (the defendant's) pistol was knocked out of his hand he threw up his hands, and said to the deceased that he was not armed, and, calling him a cowardly cur, told him to shoot; that he did not see Hill or any one else take the pistol from the deceased, nor did he know that the pistol had been taken from him; that he (the defendant) retreated, and when he got to the place where his pistol was lying he picked it up for the purpose of defending himself against the deceased; that Hill was trying to prevent the deceased from getting to him, and that as the deceased passed by Hill, going towards him, and when he was within five or six feet of the defendant, the defendant fired upon him, believing that the deceased had a pistol; that the deceased then rushed upon him, and in the struggle the defendant fired two or three times. The defendant also testified that several days before the killing the deceased came to his office, in the custom house, in company with one Clayton; that upon going to his office the deceased asked the defendant to come out into the hallway, whereupon the defendant asked him to come in, saying that he was alone; that thereupon the said Dickson came into the defendant's office, and said to him that he understood that he (the defendant) had stated that Dickson's wife was not a fit person for his (the defendant's) wife to associate with; that the defendant denied making such statement, and immediately Dickson commenced to curse the defendant, and called him the vilest and most opprobrious epithet, and threatened to cut his throat. The defendant also testified that on the next day after this occurrence, or the second day thereafter, the said Dickson again came to the custom house inquiring for the defendant, and said to the elevator man to tell the defendant that the defendant was "the s____n of a b____h," and that when he came home he (Dickson) would "shoot his d____d head off." There was also evidence introduced showing that David Dickson, the deceased, weighed about 160 to 180 pounds, was about 5 feet 10 inches tall, was a strongly built man, and that the defendant was a delicate man, about 5 feet 10 1/2 inches tall, and weighed about 130 pounds. There was also evidence introduced tending to show that the defendant had married Dickson's sister, and that Dickson objected to such marriage, and made a violent protest against it. The defendant, as a witness in his own behalf, testified that the only objection Dickson had to defendant's marrying his sister was that he had not obtained the consent of his sister's mother, and that the defendant obtained the consent of the mother, and was married to his sister at Dickson's house.

Dr. Harry T. Inge was examined as an expert, and, after testifying that on the 16th day of June, 1901, David Dickson was brought to his sanatorium suffering from pistol-shot wounds, and that he died on June 19, 1901, then testified to the dying declaration which was made by Dickson after he had been told by the doctor that he was going to die. The doctor further testified that the dying declaration was taken down by a nurse at the sanatorium as it was made by Dickson. In testifying as to what the declaration was, he stated, on cross-examination, that his recollection was that Dickson said that "as soon as Mann saw him that Mann started towards him with a pistol, and he said he drew his pistol about the same time." Upon redirect examination the solicitor asked Dr. Inge "to refer to the typewritten statement of his evidence on the preliminary trial for the purpose of refreshing his recollection, and then to state whether or not the typewritten statement contained word for word the memoranda that the nurse took down as made by Dickson, and whether or not he remembered what Dickson did say as to whether or not Mann had his pistol out before he drew his." The defendant objected to this question because it was not in rebuttal. The court overruled the objection, and the defendant duly excepted. The witness answered that he would state that Dickson said as soon as Mann saw him Mann started towards him drawing his pistol.

During the examination of one John Hyde as a witness he testified that he never heard the defendant make any threat against the deceased within two or three months prior to the difficulty. Thereupon the solicitor asked the witness, "Did he (the defendant) ever talk with you about Dickson?" The defendant objected to this question, because it called for incompetent, irrelevant, and...