McQueen v. State

• Decision Date: 24 May 1894
• Citation: 103 Ala. 12,15 So. 824
• Parties: MCQUEEN v. STATE.
• Court: Alabama Supreme Court

15 So. 824

103 Ala. 12

MCQUEEN v. STATE.

Supreme Court of Alabama

May 24, 1894

Appeal from circuit court, Butler county; J. R. Tyson, Judge.

Peter McQueen was convicted of murder in the second degree, and appeals. Affirmed.

For prior report, see 10 So. 433.

The indictment upon which the appellant was tried was for murder in the first degree, and, having been convicted at the former term of the circuit court of Butler county for murder in the second degree, the defendant pleaded an acquittal of murder in the first degree on this second trial. In response to this special plea, the bill of exceptions recites that "the solicitor for the state and replied to this special plea, and stated to the jury: 'The state confessed the plea of former acquittal of murder in the first degree, by reason of his having been tried upon this indictment and convicted of murder in the second degree, and, after conviction here, he carried the case by appeal to the supreme court, where it was reversed, on account of the errors of law committed in the trial; that with that trial you have nothing to do, and it should not have any effect upon your verdict in this trial. The defendant is not now put upon trial for murder in the 1st degree, but comes before you in this trial upon no higher or graver charge than murder in the second degree, and you cannot inquire into this case for any higher charge than murder in the second degree and the lesser degrees of homicide contained in the charge. The defendant is entitled to a fair and impartial trial by you, and you cannot look to the fact of his former conviction in this court, nor to the reversal in the supreme court, for neither can shed light upon the evidence to come before you on this trial.' The defendant objected to above statements of the solicitor, and moved to exclude them from the jury. The court overruled the motion to exclude, and to this ruling of the court the defendant excepted."

Among other charges, the defendant requested the following, and separately excepted to the court's refusal to give each of them as asked: (D) "If the jury are reasonably satisfied from the evidence that Ab Chambers [the deceased] with another, threatened to take the life of defendant, and these threats were communicated to the defendant, and that just before and at the time of the fatal rencounter, the deceased was making an attempt to carry out these threats and had theretofore, and at the time of the fatal rencounter the deceased sought the conflict, then the defendant may act on these threats and the other evidence in the case; and if defendant was reasonably free from fault in bringing on the difficulty, and there was no reasonably safe way of escape open to defendant, and there was, reasonably apparent, actual and impending danger to his life, or great bodily harm, and the defendant fired the fatal shot under this reasonable belief of imminent peril, then they should acquit the defendant." (4) "Dying declarations should be received with the greatest caution by the jury." (6) "From the fact that experience and observation show that sometimes hate and prejudice only expire with life, and that men seek to gratify a spirit of revenge in the face of immediate death, for these reasons, and from the fact that in the absence of a cross-examination, the whole truth may not be dictated, because attention is not directed to some circumstances, or unconscious delusions produced by surprise or alarm are not dispelled, the evidence of dying declarations should be received with the greatest caution."

Gamble & Powell, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HEAD J.

We are unable to see any valid objection to the remarks of the solicitor to the jury when replying to the plea of former acquittal of the higher degree of the crime charged. It was well for the jury to have such an explanation made to them and while it would probably...