McKee v. State

Decision Date24 May 1887
Citation2 So. 451,82 Ala. 32
PartiesMCKEE v. STATE.
CourtAlabama Supreme Court

Appeal from Butler circuit court.

The defendant in this case, Pleas McKee, was indicted for the murder of Charles Poole by striking him with a stick; pleaded not guilty, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 10 years. The trial was had at an adjourned term of the court, regularly called and held. Before entering on the trial, the defendant moved to quash the special venire, on three grounds (1) That the name of A. W. Carter appeared on the original venire, while the name of R. W. Carter was on the list served on him; (2) that the name of J. J. Bush appeared twice on the original and on the copy; and (3) that the clerk never made out a list of the jurors drawn by the court, nor issued any order in writing to the sheriff to summon a special jury, as required by the fifth section of the act approved February 17, 1885. On the hearing of this motion the sheriff testified that he wrote Carter's name on the list of jurors served on the defendant, and that the first initial was intended for an A., and was not an R.; and he and several others testified, also, that they knew but one J. J. Bush in the county, though the name was twice drawn out of the jury box, on different slips of paper. It was shown, also "that the clerk made no list of the special jury drawn by the court for the trial of the defendant, and made no order to the sheriff, in writing or otherwise, to summon said jury; that the sheriff summoned the jury by the direction of the presiding judge, without any list made out by the clerk or any order in writing issued by the clerk, as required by the fifth section of said act approved February 17, 1885 that the defendant was in court on the day when the jury was selected; that the slips of paper drawn from the jury box, with the names on them, were given to the sheriff and clerk as drawn, and the sheriff made a list, and summoned and served on the defendant the same names thus drawn." On these facts, the court overruled the motion to quash the venire, and the defendant excepted.

It was proved on the trial, as the bill of exceptions states, that the homicide was committed seven or eight years ago; that a party of negroes, including the deceased, were engaged in rolling logs, when several others passed by, one of them being the defendant, and stopped to assist; that most of them got to drinking, and some fell to fighting; that the defendant picked up "a handspike, a seasoned hard stick, about four feet long, two inches in diameter in the middle, and tapering towards each end," and struck the deceased over the head, holding the stick with both hands; and that the deceased died during the evening of the same day from the effects of the blow. The witnesses for the prosecution testified that no words passed between the defendant and the deceased; that the latter had not taken any part in the fighting, but was standing quietly leaning against a tree or stump, when the defendant ran up and struck him; while the witnesses for the defense testified, in substance, that the deceased had cut another negro, and, on defendant interfering, advanced on him with his open knife in his hand; that the defendant retreated backwards, picking up the hand-spike as he moved, warned the deceased not to advance on him, and struck as he continued to advance. The testimony of the prosecution tended to show that the deceased was struck from behind, turning his head just as the blow fell. One Peagler, a witness for the defense, who had helped to dress the wound, and had described it, was asked by the defendant these questions: "From the place of the wound on the head, could it have been made by a blow struck from behind?" "Was the wound stricken from the front, or from behind?" "If the deceased was standing against a tree, looking in a different direction from the defendant, could this wound have been made, as claimed by defendant, with a hand-stick, coming up behind the deceased?" On objection by the state, the court refused to allow these several questions, "and then stated that the defendant could not be allowed to prove the opinion of said Peagler, as to whether the wound was produced by a person in front of the deceased or behind him, but that he might prove all the facts and circumstances, so that the jury might determine; as it was for them to decide, and not for the witness;" to which several rulings the defendant duly excepted. Dr. Owen, the physician who dressed the wounds of the deceased, was also examined as a witness by the defendant, and, after describing the wound, "was asked for his medical opinion, as to whether the wound was given by a person standing in front of the deceased or behind him;" which question the court refused to allow, and the defendant excepted.

The defendant asked the following, with other, charges in writing, and duly excepted to the refusal of each:

"(7) If the jury believe, from the evidence, that the deceased was making a violent assault on the defendant with a drawn knife, and the defendant struck with a hand-stick to prevent the deceased from inflicting on him great bodily harm, then he is guiltless under the law, and their verdict should be for the defendant, unless they believe the defendant brought on the difficulty. (8) If the jury believe, from the evidence, that the circumstances around the defendant at the time he struck the fatal blow were such as to impress his mind with the reasonable belief that his life was in imminent peril, or that he was in danger of great bodily harm, then he had the right to strike, even to the taking of the life of the deceased; and if the blow was stricken under such circumstances as to impress the mind of a reasonable man that his life was in danger, or that [he] was in danger of great bodily harm, their verdict should be for the defendant, acquitting him entirely. (9) The danger which will excuse the defendant need not be actual, but should be such as to impress the mind of a reasonable man that the danger of life is imminent, or [that] he is in imminent danger of great bodily harm; and if the jury believe from the evidence, after considering all the evidence, that the defendant struck the blow with the hand-stick, honestly believing that his life was in danger, or that he was in danger of great bodily harm, and that the circumstances proved are such as a reasonable man would have acted on and struck, then they should find the defendant not guilty. (10) If the jury believe, from the evidence, that there had never been any unkind feelings between the deceased and the defendant, and that the deceased was advancing towards the defendant in a threatening manner, with an open knife in his hand, and that the defendant struck him to save his own life, or to save himself from great bodily harm, then they should find him not guilty, unless he brought on the difficulty. (11) In arriving at their conclusion, as to whether the defendant struck the blow in self-defense, the jury may look to the facts, if proved, that the defendant had a good character for peace; that there never was any unkind feelings whatever between him and the deceased up to that time; that defendant had no quarrel or words; that the dceased had a knife in his hand, coming towards the defendant; also, the suddenness of the encounter, together with all the other testimony in the case; and if, after considering all the testimony in the case, the jury
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42 cases
  • Roan v. State, 7 Div. 135.
    • United States
    • Supreme Court of Alabama
    • June 9, 1932
    ...should be left to the jury to infer or draw from the facts detailed. Landham v. Lloyd, 223 Ala. 487, 489, 136 So. 815; McKee v. State, 82 Ala. 32, 2 So. 451; Dumas v. State, 159 Ala. 42, 49 So. 224, 133 Am. Rep. 17. There was no error in permitting the questions and answers set out above, a......
  • Thigpen v. State, 1 Div. 180
    • United States
    • Alabama Court of Criminal Appeals
    • December 5, 1972
    ...witness is not to be allowed to state his opinion as to the direction a bullet travelled before entering the deceased's body. McKee v. State, 82 Ala. 32, 2 So. 451; Humber v. State, 19 Ala.App. 451, 99 So. 68. However, the record here discloses that Officer Pickett was possessed of knowledg......
  • Lovejoy v. State
    • United States
    • Alabama Court of Appeals
    • February 3, 1948
    ...... description and characteristics of the wounds, the jury is. equally as competent as the witness to judge and decide the. location and position of the parties participating in the. affray. In short, such testimony would be invasive of the. province of the jury. McKee v. State, 82 Ala. 32, 2. So. 451; Mathis v. State, 15 Ala.App. 245, 73 So. 122; Humber v. State, 19 Ala.App. 451, 99 So. 68;. Dumas v. State, 159 Ala. 42, 49 So. 224, 133. Am.St.Rep. 17; Blackburn v. State, 22 Ala.App. 561,. 117 So. 614. . . The. question is here posed: Was this ......
  • Weaver v. State
    • United States
    • Alabama Court of Appeals
    • June 1, 1911
    ...state's objections to such questions were properly sustained. Bennett v. State, 52 Ala. 370; Walker v. State, 58 Ala. 393; McKee v. State, 82 Ala. 32, 2 So. 451. objection to the question asked the witness Levi, "Had Cecil Goodwin been cursing the defendant before that?" was properly sustai......
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