Neilson v. State

• Decision Date: 01 February 1906
• Citation: 40 So. 221,146 Ala. 683
• Parties: NEILSON v. STATE.
• Court: Alabama Supreme Court

40 So. 221

146 Ala. 683

NEILSON v. STATE.

Supreme Court of Alabama

February 1, 1906

Appeal from City Court of Bessemer; William Jackson, Judge.

"Not officially reported."

George D. Neilson was convicted of manslaughter in the second degree, and appeals. Reversed.

The solicitor made this statement to the jury in his opening argument: "That Cary, the man with Neilson, knew that McGhee was down at the boilers, and that the evidence showed that Cary and Neilson said that they were going down to the boilers to quiet McGhee."

The court in its oral charge to the jury said: "And if you find from the evidence that this defendant voluntarily deprived Tom McGhee of his life this would constitute manslaughter in the first degree, and if you find that the defendant killed Tom McGhee under any other circumstances, it would be manslaughter in the second degree."

The following written charges were requested by the defendant and refused by the court:

"(1) Before the jury can convict the defendant, the hypothesis of his guilt should be consistent with all the circumstances."

"(3) Before the jury should convict the defendant, the hypothesis of his guilt should flow naturally from the facts proven and be consistent with all the facts in the case."

"(5) The court charges the jury that a person charged with a felony should not be convicted of a felony unless the evidence excludes to a moral certainty every reasonable hypothesis but that of defendant's guilt. No matter how strong the circumstances are, they do not come up to the full measure of proof."

"(XX Q) If the evidence is reasonably consistent with the defendant's innocence, you should promptly acquit him."

"(7) The jury should be satisfied beyond a reasonable doubt, to the exclusion of every probability of innocence and beyond every reasonable doubt of guilt, before they can convict the defendant."

"(B12) If you find from all the evidence in the case that there is a probability of defendant's innocence, you should acquit him."

"(L) The defendant enters into this trial with a presumption of innocence, and this is a fact in the case which must be considered with the evidence and should not be disregarded."

"(M) The burden is on the state to convince you of defendant's guilt to the exclusion of every reasonable doubt, and by evidence that overcomes the presumption of fact, that the law surrounds the defendant with, that he is innocent of crime."

"(21) Unless each member of the jury from all the evidence in the cause is satisfied beyond a reasonable doubt that the defendant shot McGhee with malice towards him, then the jury cannot find the defendant guilty of murder."

"(A2) The evidence which shows the killing of one person by another with a deadly weapon may rebut the presumption of malice arising from the use of such weapon."

"(B) The defendant need not have been in real danger in order to justify him in taking the life of McGhee. If he was in a position where it reasonably appeared to him that he was about to lose his life, and there was no mode of escape without increasing his danger, he would be justified in taking the life of his assailant to save his own, if he was free from fault in bringing on the difficulty."

Shugart & Bell and Stallings & Nesmith, for appellant.

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

TYSON J.

The indictment sufficiently charged the offense of murder in the second degree. The trial resulted in a conviction of the defendant of manslaughter in the second degree.

Many exceptions were reserved during the trial to the rulings of the court relating to the admission and exclusion of evidence. Prominent among these was the refusal to permit the defendant on cross-examination to show that deceased was intoxicated at the time he was killed. The attempt to show this fact was repeated a number of times, and each time on objection interposed was ruled out. The first eyewitness introduced by the state to the killing testified to an overt act on the part of the deceased from which the jury may infer that the defendant was acting in self-defense when he fired the fatal shot. It was, therefore, competent for the defendant to show the condition of deceased with respect to being intoxicated and the degree of such intoxication. Smith v. State (Ala.) 39 So. 329. Of course, the...