Moss v. State

• Decision Date: 17 December 1914
• Docket Number: 969
• Citation: 190 Ala. 14,67 So. 431
• Parties: MOSS v. STATE.
• Court: Alabama Supreme Court

67 So. 431

190 Ala. 14

MOSS v. STATE.

No. 969

Supreme Court of Alabama

December 17, 1914

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

J.W Moss was convicted of murder in the first degree, and he appeals. Affirmed.

Prosch & Prosch, of Birmingham, for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was convicted of murder in the first degree and was sentenced to the penitentiary for life. This appeal is prosecuted by him for the purpose of reversing the judgment of conviction.

1. The theory of the state was that the defendant was guilty of murder, in that he lay in wait for the deceased and shot him inflicting wounds upon him from which he died. Our statute makes this character of homicide murder in the first degree. There was evidence sustaining this theory of the state, and the verdict of the jury indicates that they were satisfied with the truth of that evidence beyond a reasonable doubt.

The theory of the defendant was that he killed the deceased in self-defense. He testified to facts which tended to establish this theory, and there was some evidence tending to corroborate his statements.

A critical examination of this record, however, convinces us that the defendant received in the court below a fair and impartial trial, and we are of the opinion that the judgment of the trial court should be affirmed for the reasons set out below.

2. It appears that the deceased came to his death at a late hour in the night. It also appears that prior to the homicide the defendant and the deceased, on this same night, had engaged in two altercations. These altercations probably grew out of the refusal of the defendant to cash a check for the deceased. The last altercation antedated the homicide about fifteen minutes. At the conclusion of the last altercation the parties separated, and about 15 minutes afterwards the defendant shot the deceased while the deceased was walking along a street in Bessemer. The tendencies of the state's evidence were that the defendant concealed himself behind a column and shot the deceased while the deceased was peaceably walking down a street. One of the witnesses for the state described the homicide as follows:

"Mr. Moss, the defendant, shot Will Gray with a shotgun. Will Gray was walking on the street as defendant shot him; he was doing nothing to the defendant; he was walking on the sidewalk. Going toward First avenue kind of east, on the left-hand side going east. I was walking just a few steps behind Mr. Gray, going towards First avenue. Mr. Gray was walking next to the building on that side. We were on the left side of Nineteenth street, going toward First avenue. The defendant was standing up there, back there in the front door of the White Front store. That is known as the Barr store. It is a vestibule front. He was standing back in there. Mr. Gray said nothing to defendant before he shot Mr. Gray. William Gray had no weapon, and his hands were by his side."

The defendant claims that he killed the deceased while he was being attacked by the deceased and one Will Moose. On that subject he said:

"Will Gray kept following me up, and I told him not to come any further, if he did I would shoot him, until I got back against the building, and then I could not get any further, and he kept coming, and he made another step and raised his left hand to get my gun, and he had his knife in his other hand, and I threw my gun down on his leg and shot him. When I told him to get back, I had my gun on his body. When he reached for my gun with his left hand, I could see his knife open in his right hand. When I got to the corner of the alley, I saw him coming out of the alley, and he says: 'You God damn old ______! I will get you this time.' And I backed back about 20 feet, and Will Moose kept coming around at his side with his knife in his hand, and he came on around in front of me, and I

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