Miller v. State

Decision Date25 July 1895
Citation107 Ala. 40,19 So. 37
PartiesMILLER v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Lowndes county; John R. Tyson, Judge.

James Miller was convicted of murder, and appeals. Affirmed.

The appellant was indicted and tried for the murder of E. E Curtis, by shooting him with a pistol, and was convicted of murder in the second degree, and was sentenced to the penitentiary for 20 years. The evidence for the state, as shown by the bill of exceptions, tended to show that on the evening of September 12, 1893, just after supper, and a few minutes after the defendant had eaten supper, and had left his boarding house, four pistol shots were heard; that upon several persons going to the place where the shooting occurred, they found E. E. Curtis lying upon the sidewalk wounded from a pistol shot; that he was carried to the house of Miss Bowie, a short distance away, but died before he got to the house. The testimony of the witnesses for the state further tended to show that the shooting occurred very shortly after the defendant left the house of Miss Bowie where he boarded,-not longer than it would have taken defendant to have walked from the boarding house, where he ate his supper, to the place of the shooting. There was no question but that the defendant did the shooting. One of the witnesses for the state testified that she saw all of the flashes of the pistol shots, and that after the first flash the others seemed to come from a pistol in the hands of a person who was moving away. Miss Bowie, one of the witnesses for the state, at whose house the defendant boarded testified, among other things, "that the defendant came to her house to supper on the evening of the killing; that he did not engage in conversation, speaking only when he was spoken to; that he appeared angry. He was generally pleasant and talkative, but that night he was not." The defendant objected to and moved to exclude the words "appeared angry." The court overruled this objection, and the defendant duly excepted. The defendant, as a witness in his own behalf, testified that after eating his supper he left the house of Miss Bowie, and that as he was walking down the street he saw Curtis coming up the street; that as he approached Curtis he stepped out to one side, and Curtis passed him; that after Curtis had passed on, Miller stepped back into the path; that just as he got back into the path Curtis turned upon him, and, cursing him most vilely, drew something from his pocket, which glittered, and started towards him; that he backed off from Curtis, still watching him, and that as Curtis approached him, immediately upon drawing something from his pocket, he, the defendant, drew his pistol, and fired one shot at Curtis; that, seeing Curtis still advancing on him, he fired three others; that when he ceased firing he saw that Curtis was no longer approaching him, and he then walked off; that he was very much excited that when he got a short distance away he heard some loud talking, which satisfied him that he had shot Curtis; and that he walked from Benton, the place of the shooting, and walked to Montgomery that night, reaching the latter place about 6 o'clock the next morning. It was shown that the night was very dark. The defendant proved by several witnesses that they had known him all of his life, knew both his general character and his character for peace and quiet in the community in which he lived, and that his character was very good in both respects.

In his general charge to the jury the court, among other things, instructed them as follows: (1) "Whenever one man intentionally kills another with a deadly weapon, the law presumes that it was maliciously done; that it was done with formed design to take life, unless the evidence which proves the killing shows the excuse or extenuation." (3) "In this case the killing is not denied, nor is it denied that it was done intentionally with a deadly weapon, and the law puts upon the defendant the burden of rebutting the presumption of malice." (4) "In this case the burden is upon the defendant to reasonably satisfy your minds that he acted in self-defense." To each of these portions of the court's general charge the defendant separately excepted, and also separately excepted to the court's giving to the jury, at the request of the state, the following written charges: (1) "The court charges the jury that in cases of homicide the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence which proves the killing shows also that it was perpetrated without malice; and whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts in evidence, there can be no conviction for any less degree of homicide than murder." (2) "The court charges the jury the apparent necessity which will excuse the taking of human life under the doctrine of self-defense in cases of homicide involves two considerations: First, the defendant himself must have entertained an honest belief in the existence of such necessity; and, second, the circumstances surrounding him must have been such as to impress a reasonable man, under the same state of facts, with the belief of his imminent peril, and of the existence of an urgent necessity to take the life of his assailant, as the only apparent alternative of saving his own life, or else of preventing the infliction on him (the defendant) of grievous bodily harm." (3) "The court charges the jury that before the jury can acquit the defendant on the ground of self-defense three essential elements must concur: First, the defendant must be reasonably without fault in bringing on the difficulty, and must not be disregardful of the consequences, in this respect, of any wrongful word or act; second, there must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, imperious, impending necessity to shoot in order to save himself from great bodily harm; third, and there must have been no other reasonable mode of escape by retreat or by avoiding the combat with safety." (5) "The court charges the jury, to make the plea of self-defense available, the defendant must be without fault. If he was himself the aggressor, he cannot invoke the doctrine of self-defense, even if the deceased was approaching him in a hostile manner. And whether the necessity to take the life of the deceased was real or only apparent, if brought about by the design, contrivance, or fault of the defendant, he cannot be excused on the plea of self-defense." (6) "The court charges the jury, when the defendant sets up self-defense in justification or excuse of a killing, the burden of proof is upon him to show the jury by the evidence that there was a present impending danger, real or apparent, to life or limb, or of grievous bodily harm, from which there was no other probable means of escape, unless the evidence which proves the homicide proves also its excuse or justification." (7) "The court charges the jury that if the defendant, in Lowndes county, and before the finding of this indictment, purposely killed the deceased, Eugene Curtis, by shooting him with a pistol, with a wickedness or depravity of heart towards said deceased, and the killing was determined on beforehand and after reflection (for however short a time before the fatal shooting was done is immaterial), the defendant is guilty of murder." (8) "The court charges the jury that in determining the weight they will give to the defendant's testimony they should consider, along with all the other circumstances having any bearing on the matter, the fact that he is the defendant, and the fact, if they so find, that his testimony is in conflict with other evidence in the case." (9) "The court charges the jury that the interest the defendant has in the case may be considered by them in weighing his own 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) "Whenever any act done by the defendant is capable of two constructions, one consistent with his innocence, and the other tending to establish his guilt, it is the duty of the jury to put upon the act of the construction consistent with his innocence." (2) "If, after considering the whole evidence, including the testimony of defendant, the jury have a reasonable doubt as to whether Miller shot Curtis in self-defense, or under such circumstances as to make him guilty of a crime, it is their duty to give him the benefit of the doubt, and acquit him." (3) "The court charges the jury that the rule of law is settled in this state that in all criminal prosecutions the accused may offer evidence of his previous good character, not only where a doubt exists on the other proof, but even to generate...

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