McClellan v. State

• Decision Date: 14 June 1904
• Citation: 37 So. 239,140 Ala. 99
• Parties: MCCLELLAN v. STATE.
• Court: Alabama Supreme Court

37 So. 239

140 Ala. 99

MCCLELLAN v. STATE.

Supreme Court of Alabama

June 14, 1904

Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.

Jerry McClellan was convicted of murder, and appeals. Affirmed.

The bill of exceptions contains the following recital as to the motion to quash the venire: "The defendant, before entering upon the trial, objected to going to trial, and moved the court to quash the venire on the ground that there was a variance between the original and the copy, which was served upon the defendant, in this: that the copy served did not show the occupation of the regular panel for the week and the original showed the occupation of said jurors. The court overruled the objection and motion, and the defendant excepted." This was all that was shown as to the original list of jurors, or the copy served on the defendant. There were several witnesses introduced on the part of the state, who testified that Forney Williams was killed at the residence of Jerry McClellan; that there was an entertainment at Jerry's house, and upon his talking to another man and demanding that they stop swearing, the deceased, Forney Williams, walked up to the defendant, and struck him twice in the face; that thereupon the deceased, ForneyWilliams, walked out of the house into the yard, and the defendant walked into an adjoining room, which was his bedroom, and procured a gun and that while the deceased, Forney Williams, was standing 10 feet away, talking to another man, the defendant fired upon said Williams, and killed him; that the deceased had his side turned to the defendant when the fatal shot was fired. The defendant, as a witness in his own behalf, testified that after being struck by the deceased he went into his room, and that deceased followed him, and as he got near him he cursed him, and threw his hand towards his pocket as if about to draw a pistol, and that the defendant thereupon shot him. The defendant also testified that about a year previous to the homicide the deceased had threatened to kill him, which threats were communicated to the defendant. The defendant introduced several witnesses who testified to his general good character. 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) The court charges the jury that if they believe that the defendant, when he entered into his private room in his dwelling house, and that the deceased, Forney Williams, was advancing towards defendant, standing in the door of his private room, with the intention to do or commit great bodily harm on defendant, and that defendant believed he was in imminent peril, that in such case defendant is exonerated from killing Forney Williams. (2) The court charges the jury that if t...