Martin v. State

• Decision Date: 30 January 1891
• Citation: 90 Ala. 602,8 So. 858
• Parties: MARTIN v. STATE.
• Court: Alabama Supreme Court

8 So. 858

90 Ala. 602

MARTIN v. STATE.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

The defendant in this case, James Martin, was indicted for the murder of Lewis Bullard, "by striking him on the head with a rock;" was convicted of manslaughter in the first degree; and sentenced to the penitentiary for the term of five years. The defendant was a negro boy about 14 years old his exact age being disputed; and the deceased was a negro boy about 17 years old. They were both laboring on the farm of A. G. Henry, and ate their meals and slept at the house of Mr. Thrift, the foreman. The difficulty commenced in a trivial quarrel, when no one was present but themselves. The evidence showed that the deceased took defendant's knife out of his pocket, threatened to kill him, and struck at him with a plank or stick as the defendant ran out of the room that he "pursued the defendant outside of the gate threatening to kill him, whereupon the defendant picked up a rock, about as big as his two fists, turned quickly, and threw it at the deceased," striking him on the side of the head, and fracturing his skull; and the deceased died four or five hours afterwards, from the effects of the blow. The defendant went at once to the house of one Pink McCain where he found said McCain, his wife, and Griff Proctor, whom he told that he had knocked Bullard in the head with a rock, and thought he had killed him; and said McCain and Proctor then went to the spot, and carried deceased into the house. The bill of exceptions states: "There was no conflict in the evidence concerning the circumstances of the difficulty, except certain declarations or confessions, said to have been made by defendant to said McCain, his wife, and said Proctor, soon after the difficulty occurred." Each of them was examined as a witness for the state, and stated the defendant's declarations in varying language: "That they fell out because the deceased threw his knife away; that the deceased was making at him with a stick when he struck him, but he knocked hell out of him." "He threw my knife away, and I told him I would kill him, and I done it, too." "He said, if I wanted to fight, to go out, and he would fight; we went out, and I hit him on the head." "He said he would throw my knife away, and I told him I would kill him, and I done it; he didn't believe it, but now he sees." After all the evidence was in, the defendant "moved to exclude said declarations or confessions from the jury, on the ground that the defendant was at that time under fourteen years of age, but no point was made that the same were not voluntary." The court overruled the motion, and defendant excepted.

As to whether the defendant was under or over 14 years of age at the time of the killing, the evidence was conflicting. F. Gilbreath testified that the defendant was about 15 or 16 years old; but, upon examination by defendant, said this was only his opinion or judgment; that he had known defendant only 7 or 8 years, and did not know when he was born. The defendant thereupon moved to exclude the testimony of said witness, and excepted to the overruling of his motion. Will Martin, a brother of the defendant, having testified that he was under 14 years of age, was asked, on cross-examination, "Is Jim a smart boy?" and answered, "He is tolerably bright." To this question and answer, each, the defendant objected, and excepted to their allowance. Thomas Swords, a witness for the defendant, testified that the deceased was, "You might say, a fussy boy,-not much fussy;" and was asked, on cross-examination, "if deceased had the character of being a bad boy;" and answered, "that he could not say that he had a bad character." To this question and answer, each, on cross-examination, the defendant objected, and excepted to their allowance.

On this evidence the defendant requested the following charges in writing, and duly excepted to their refusal by the trial court: (1) "If, from all the evidence, the jury are not satisfied beyond all reasonable doubt of the defendant's guilt, and that he did not have a reasonable ground to apprehend an attack, then they must find him not guilty." (2) "If the jury believe from the evidence that the fatal blow was struck with a rock picked up on the spur of the moment, without previous selection or preparation, then they should not presume that the defendant struck with malice, from the use of the rock alone." (3) "Even though the jury should be satisfied from the evidence that the defendant is the guilty agent, and that he committed the act charged in the indictment, yet if they further find that he was, at the time, under fourteen years of age, they must acquit, unless they are further satisfied from the evidence, beyond all reasonable doubt, that he was at the time of sufficient intelligence to be fully aware of the nature and consequence of the act, and that he plainly showed intelligent malice in the manner of executing it." (4) "If the jury believe from the evidence that the defendant was under fourteen years of age at the time of the killing, then his admissions to McCain and wife and Proctor, or any other admissions, cannot be considered by the jury, as he was too young in law to be bound by his admissions." (5) "If the jury believe from the evidence that the defendant was not at fault in bringing on the difficulty, and that the deceased was pursuing him with a stick, rock, or other weapon, when he threw the rock at the deceased, defendant was not bound to retreat, but might strike in his defense; and if he did this, and did not use more force than was reasonable under all the circumstances to repel the assault, then he would be justifiable, although death may have resulted from the blow." (6) "If the jury find that the house at which the difficulty occurred was the house where the defendant lived, and that he worked in the field by day, and got his meals at the house of Thrift, his employer, and slept by night in the house where the killing occurred, then this house was his home, and his castle in law, and he was not bound to retreat, if attacked there, but might stand his ground, and defend himself, and use just such force as was reasonable and necessary to defend himself; and if he did nothing more, and death ensured from the blow struck by him, he would justifiable, and should be acquitted." (7) "'Great bodily harm,' in law, means to deprive one of the use of some member of his body, or some permanent or lasting injury." (8) "If the jury are reasonably satisfied from the evidence that the defendant was without fault in bringing on the attack, and that the deceased was pursuing him with a stick or other weapon, and that he struck the deceased with a rock, as shown by the evidence, and did so to resist the assault, and that the weapon used was only such as was reasonable under the circumstances, and not disproportionate to the assault on him by the deceased, then he was justified, the killing was in self-defense, and he should be acquitted." (9) "If the jury find from the evidence that the deceased, at the time the blow was struck, was making an assault on the defendant, and that the defendant, in resisting said assault, used force not greatly disproportionate to the character of the assault, and death accidentally resulted, this would be self-defense, and the jury should acquit him." (10) "If the jury find from the evidence that the deceased, at the time the blow was struck, was making an assault on the defendant, and that the defendant, in resisting said assault, used force not greatly disproportionate to the character of the assault, and death results by misadventure, then the jury should acquit him." (11) "If the jury find from the evidence that the defendant was under fourteen years of age at the time of the killing, then they will disregard the declarations made by him to McCain and wife and Proctor, if they find that he made any declarations to them." (12) "If the jury believe from the evidence that the deceased was making an assault on the defendant's person, and that the defendant employed only such force as is ordinarily necessary to resist such an assault, and did not use a weapon, the natural, reasonable, and probable result from the use of which is death, then they must acquit the defendant, notwithstanding death did actually ensue." (13) "If the jury believe from the evidence that the defendant did not intend to kill the deceased, but merely employed that force necessary to resist an assault which the deceased was at the time making on him, and death accidentally resulted, and that the defendant did not use a weapon the use of which would reasonably, naturally, and ordinarily produce death, then they must find him not guilty." (14) "Though the jury should find, from the evidence, that the defendant threw the rock, but that he was under fourteen years of age, they cannot convict him, unless the proof convinces them, beyond all reasonable doubt, that he was fully aware of the nature and consequences of the act, and that in the commission of it he bore actual malice to the deceased. In the case of...