Morris v. State

• Citation: 39 So. 608
• Parties: MORRIS v. STATE.
• Decision Date: 01 June 1905
• Court: Supreme Court of Alabama

39 So. 608

MORRIS v. STATE.

Supreme Court of Alabama

June 1, 1905

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

"Not officially reported."

John Morris was convicted of manslaughter, and he appeals. Reversed.

There was a motion to quash the indictment on the following grounds: (1) Grand jury which found and returned the same was not drawn by the officers authorized by law. (2) The persons acting as grand jurors that returned the indictment were drawn by persons who had received no commissions as commissioners of Limestone county. (3) That the commissioners of Limestone county are the jury commission of that county and before they can act under the law in the discharge of their duties as such commission they must receive a commission from the proper source, and to act without such commission is a misdemeanor, and not having received such commissions, their acts in drawing jury were void. (4) That the box containing names to constitute jurors was not prepared by any one thereunto lawfully authorized. (5) That the slips containing the names of persons to be drawn as jurors and placed in the jury box were prepared and placed in said box by persons not authorized by law so to do. There was a motion to quash the venire drawn to try cause on the same grounds.

An oral charge of the court, excepted to by the defendant, was "Before you can find that the defendant is entitled to the plea of self-defense, both he and his father must have been free from fault in bringing on the difficulty with Mr Gresham." Charge 1, given at the request of the state in writing, was: "I charge you that if you believe beyond all reasonable doubt from the evidence in this case, that the difficulty between Gresham and John Morris, Sr., had ended and they were separated, if you believe there was a difficulty between them, and it was ended, and they had been separated, then I charge you that John Morris, Jr., had no legal right to assault Gresham in any way; and if under such circumstances John Morris, Jr., the defendant, attacked Gresham and shot him, then I charge you that you cannot acquit the defendant." Charge 2, requested by the state and given by the court, was: "I charge you, gentlemen of the jury, that if you believe, from all the evidence in this case, beyond all reasonable doubt, that the difficulty between John Morris, Sr., and Dock Gresham had ended, and they had been separated, if you so believe, then I charge you that the defendant, John Morris, Jr., had no legal right to shoot Dock Gresham, if he did shoot him." Charge 3, requested by the state and given by the court, was: "I charge you, gentlemen of the jury, that the fact that John Morris, Sr., was bloody from his difficulty with Gresham, if you so find, was no justification for this defendant to shoot said Gresham, if you find that he did shoot."

Charge 3L, requested by defendant and refused by the court, was: "If the jury believe, from the evidence, that the defendant saw B. F. Gresham striking his father, and because of this shot B. F. Gresham in the heat of passion, then under no circumstances can you convict the defendant of a higher offense than manslaughter in the first degree." Charge 4L, refused to defendant, was: "I charge you, gentlemen of the jury, that the word 'deliberate' means done in a cool state of the blood, and not done in the heat of passion engendered by a lawful or just provocation; and if you believe from the evidence, or any part of the same, after a consideration of the whole evidence, that the defendant acted in the heat of passion engendered by a lawful or just provocation, and not in a cool state of the blood, then under no circumstances can you convict the defendant of any higher offense than manslaughter in the first degree." Charge A, requested by the defendant and refused by the court, was: "Murder in the first degree is where a homicide is committed with the specific intent to take life, deliberately formed and acted upon, or where a killing results from a reckless disregard of human life; but if neither of the above ingredients is shown by the testimony as having been harbored by John Morris, Jr., and the proof shows that the killing was done with malice, it is murder in the second degree. If, however, it is shown by the testimony that the killing was not done with the specific intention nor from a reckless disregard of human life, not with malice, yet voluntarily done, it is manslaughter in the first degree, and if the killing is done under circumstances which do not make it murder in the first degree or in the second degree, or manslaughter in the first, and yet it is done without legal provocation and not in self-defense, it is manslaughter in the second degree." Charge L, requested by and refused to the defendant, was: "If there is generated in the minds of the jury by the evidence in this case, or any part of the same, after a consideration of the whole evidence, a well-founded doubt of defendant's unlawful and intentional killing of B. F. Gresham, then the jury cannot convict the defendant of manslaughter in the first degree."

Charge 7, given at the request of defendant, was: "I charge you, gentlemen of the jury, that the word 'deliberate' means done in a cool state of the blood, and not done in the heat of passion engendered by a lawful or just provocation; and if you believe from the evidence that the defendant acted in the heat of passion engendered by a lawful or just provocation, and not in a cool state of the blood, then under no circumstances can you convict the defendant of any higher offense than manslaughter in the first degree."

W. R. Walker, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The defendant was indicted for the murder of Dock Gresham by shooting him with a pistol. On the trial a verdict was rendered against the defendant, finding him guilty of manslaughter in the first degree, and fixing his punishment seven years' imprisonment in the penitentiary. There was no evidence offered in support of the motions made to quash the indictment and the venires, and the court properly overruled them.

The killing occurred on the 25th day of June, 1904, in Limestone county, at Baker's Mill, where there was a large gathering of people; the occasion being a neighborhood barbecue. The deceased and defendant's father, John Morris, Sr., had an altercation of words, and deceased knocked defendant's father down with his fist. At the time deceased knocked Morris, Sr., down, defendant was 15 or 20 steps away and ran immediately to where deceased was, approaching from his rear, and, running in front of him, fired upon him twice with a pistol. Both shots took effect in the body of the deceased, from which he sank to the ground and immediately expired. It is thoroughly and well settled law that a son may fight in defense of his father. But this right is only coextensive with the right of the father, under the existing circumstances of the particular occasion, to defend himself. In other words, the son's right to kill in defense of his father depends upon the same conditions as would be necessary to excuse the father under the plea of self-defense. Karr's Case, 106 Ala. 1, 17 So. 328; Wood's Case, 128 Ala. 27, 29 So. 557, 86 Am. St. Rep. 71; Mitchell's Case, 129 Ala. 23, 30 So. 348; Surginer's Case, 134 Ala. 120, 32 So. 277; Gibson's Case, 91 Ala. 64, 9 So. 171; Bostic's Case, 94 Ala. 45, 10 So. 602. It is unnecessary to define and discuss the elements of self-defense. The application of them to the case in hand may be readily made by reference to the numerous precedents established by our own court. Authorities supra; Mitchell's Case, 60 Ala. 26; Wilkin's Case, 98 Ala. 1, 13 So. 312; Lewis' Case, 88 Ala. 13, 6 So. 755; Cross' Case, 63 Ala. 48; DeArman's Case, 71 Ala. 359; Harkness' Case, 129 Ala. 71, 30 So. 73; Abernathy's Case, 129 Ala. 87, 29 So. 844; Gilmore's Case, 126 Ala. 21, 28 So. 595; Wilson's Case, 128 Ala. 17, 29 So. 569; Harris' Case, 123 Ala. 69, 26 So. 515; Howell's Case, 79 Ala. 284. That part of the court's oral charge excepted to by the defendant was free from error.

At the request of the solicitor in writing, the court gave three special instructions to the jury. It is obvious that charge 1 was requested upon the theory that the defense was based by defendant upon the right to kill in defense of his father. If at the time the fatal shots were fired the difficulty between the father and the deceased had ended and they were separated, which status the evidence tended strongly to establish, there was no necessity for the defendant to shoot to save his father from any injury, and certainly under such...