Naugher v. State

• Citation: 116 Ala. 463,23 So. 26
• Parties: NAUGHER v. STATE.
• Decision Date: 27 January 1898
• Court: Supreme Court of Alabama

23 So. 26

116 Ala. 463

NAUGHER v. STATE.

Supreme Court of Alabama

January 27, 1898

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

David T. Naugher was convicted of murder in the second degree, and he appeals. Reversed.

The defendant, as a witness in his own behalf, testified that one day after the deceased had been to his house with a shotgun trying to get him to come out of the house, he watched the deceased as he left his (defendant's) house, and followed him; that, when the deceased arrived at home, his sister-in-law said to him, "He was too smart for you;" and that the defendant heard Powell Hancock reply "If he had not been, I would have got him; I had buckshot this time." The state objected to this testimony, and moved to exclude it from the jury. The court sustained the objection, and refused to permit the testimony to go to the jury, and to this ruling the defendant duly excepted. Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the following charges: (9) "The court charges the jury that if from all the evidence they have a reasonable doubt as to whether or not defendant fired the fatal shot of malice only in the heat of passion, suddenly aroused, under sufficient provocation, then the jury cannot convict the defendant of murder in the second degree." (12) "Unless from all the evidence in this case the jury can each say as a juror sworn and impaneled to try the case according to the evidence, beyond all reasonable doubt, that the defendant killed Powell Hancock with malice towards him (said Powell Hancock), then the jury cannot and should not find the defendant guilty of murder in the second degree." (14) "Unless the jury are satisfied from the evidence beyond all reasonable doubt that the defendant fired the fatal shot maliciously, the jury cannot convict the defendant of murder in the second degree." The defendant also requested the court to give to the jury each of the following charges, and separately excepted to the court's refusal to give each of them as asked: (10) "If from all the evidence the jury has a reasonable doubt as to whether or not defendant fired the fatal shot which took the life of deceased, from malice or from heat of passion, produced by sudden rencounter, then the jury cannot convict the defendant of murder in the second degree." (16) "If the jury has a reasonable doubt as to the truth or falsity of the testimony of the defendant as deposed to by him on the stand then the jury must find the defendant not guilty." (17) "If the jury find that the defendant, at and prior to the time he killed Powell Hancock, was a man of good character, and the jury further find from all the evidence an utter absence of any motive defendant might or did have for taking the life of deceased unlawfully, then the jury may, in connection with all the evidence, look to such good character of defendant; and absence of any motive on the part of defendant to take the life of deceased, and such good character and absence of motive, may generate in the minds of the jury a reasonable doubt of the guilt of the defendant of any crime charged in the indictment, and, if such reasonable doubt is in the minds of the jury as to defendant's guilt, then the jury must acquit him."

Inzer & Greene, M. M. Smith, and B. F. Pope, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was tried for the...