Naugher v. State

• Decision Date: 17 January 1895
• Citation: 105 Ala. 26,17 So. 24
• Parties: NAUGHER v. STATE.
• Court: Alabama Supreme Court

17 So. 24

105 Ala. 26

NAUGHER v. STATE.

Supreme Court of Alabama

January 17, 1895

Appeal from circuit court, St. Clair county; Le Roy F. Box, Judge.

Indictment against David T. Naugher for murder. From a conviction of murder in the second degree, and sentence to the penitentiary for 10 years, defendant appeals. Reversed and remanded.

Several of the witnesses in behalf of the state testified that on the day Powell Hancock was killed they heard four gunshots in the direction of the defendant's house, and shortly after met the defendant going from his house; that the defendant said he had killed one d___d rascal, and would kill another if he folled with him; that, upon being further told by the defendant that he had killed Powell Hancock, they went to the defendant's house, and found Powell Hancock lying about 20 feet outside of the gate of the defendant's yard, with several gunshot wounds upon his body; that they examined the defendant, and did not find a pistol or weapon about him except a pocketknife, nor did they find any pistol in the house or yard of the defendant. The testimony for the defendant tended to show that shortly after a difficulty with the brother of the deceased, Fonzo Hancock, in which the said Fonzo Hancock shot at the defendant with a gun, deceased came to his (defendant's) house; that, while standing upon the porch of the defendant's house, when the defendant came in view, the deceased put his hand on his right hip pocket and said to the defendant, cursing him, "Fonzo did not get you, but I will;" that just as the deceased made this remark, and put his hand on his hip pocket, the defendant, who was carrying a gun, put his gun down in shooting position, and fired two shots at the deceased; that said Hancock then turned and ran inside of the defendant's house, and, just as the defendant was again approaching his house, the deceased ran out of the house with his right hand still in his hip pocket, and, as he reached the ground at the bottom of the steps, said to the defendant, cursing him, "I will get you now;" that thereupon the defendant fired two more shots, in quick succession, at said deceased, who then ran out of the defendant's front gate, and fell 20 feet beyond. There was further testimony on the part of the defendant that the deceased and his brother, Fonzo Hancock, had made repeated threats against his life, which had been communicated to him. The wife of Fonzo Hancock, the brother of the deceased testified as a witness for the state that on the morning of the day Powell Hancock was killed, the deceased, Fonzo Hancock, and the defendant, after returning from duck hunting together, stayed in her yard, shooting at a target with their guns; and that all of the shells owned by Fonzo Hancock were shot up while shooting at the target, except one; but she was the only one who knew where this shell was. Another witness for the state testified that on the afternoon after the shooting he passed by the yard of Fonzo Hancock, and saw a target that had been shot at with guns. The defendant objected to this testimony, and duly excepted to the court's overruling his objection. The defendant requested the court to give the following charges to the jury, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that the law does not require one who is assailed in his own dwelling to retreat from it, but the law permits him, and says that it is his right, to stand his ground, and kill his assailant, if it is necessary so to do to save his life, or to protect himself from great bodily harm, provided he is without fault in bringing on the difficulty. And in this case the court charges the jury that if they believe from the evidence that the defendant, on coming to his yard, found the deceased in his dwelling house, or in the act of entering his dwelling house, and that the deceased so acted as to create in the mind of defendant reasonable belief that himself or any member of his family was in danger of his life or sustaining great bodily harm at the hands of deceased, then the defendant, under the law, had a right to shoot deceased and take his life, if such shooting was necessary to protect his own life, or that of any member of his family, from sustaining great bodily harm at the hands of deceased." (2) "The court charges the jury that there is no evidence in this...