Nelson v. State

• Citation: 30 So. 728,130 Ala. 83
• Parties: NELSON v. STATE.
• Decision Date: 29 June 1901
• Court: Supreme Court of Alabama

30 So. 728

130 Ala. 83

NELSON v. STATE.

Supreme Court of Alabama

June 29, 1901

Appeal from circuit court, Dallas county; John Moore, Judge.

Charley Nelson was convicted of murder, and appeals. Reversed.

During the cross examination of the defendant as a witness, and after he had testified that it was several months after he shot the deceased with a gun before he was arrested, he was asked the following question: "What did you do with the gun with which you shot Mr. Sumner?" To this question defendant objected upon the ground that it called for illegal, irrelevant, and immaterial evidence. The court overruled this objection, and the defendant duly excepted. The defendant, as a witness, answered the question as follows: "I sold it to a man living near Bogue Chitto Alabama by the name of Joe Mosley." The defendant moved to exclude this answer from the jury, on the ground that it was illegal, irrelevant, and immaterial evidence. The court overruled the objection, and the defendant duly excepted. The defendant was then asked, on further cross-examination several questions relating as to the manner of his making his escape from jail. The defendant objected to each of these questions upon the ground that it called for illegal irrelevant, and immaterial evidence, and separately excepted to the court's overruling each of his objections thereto.

Walter R. Shafer and Chambliss Keith, for appellant.

Chas G Brown, Atty. Gen., for the State.

McCLELLAN C.J.

The appellant, Charley Nelson, was tried on an indictment charging him with the murder of Shelley Sumner, convicted of murder in the first degree, and sentenced to be hanged. The testimony for the state went to show that the defendant shot the deceased with a shotgun loaded with buckshot, in the back, as Sumner was riding rapidly away from him on a mule the shot entering as from the right side, and ranging forward and toward the left through the body; and that, when shot, Sumner was leaning forward in the saddle. The state's witnesses gave no account of the origin of the affair nor of the particulars further than we have stated. They were 150 or 200 yards away from the point whence the shot was fired, and their attention was first attracted by the sound of the galloping of deceased's mule away from defendant. The defendant himself testified as follows: "I had been at the gin house of Mr. Van Pelt all day, and when he closed down Porter Coleman and myself went off up the public road, going in a direction from Richmond. After we had gone down the road nearly a hundred yards, I looked up, and saw a wagon coming towards us. In the wagon I soon recognized James Pate and Frank Dudley. Behind the wagon was Shelley Sumner, riding towards us on a mule. Before Porter and I met the wagon, Sumner rode around the wagon, and came towards us. When I noticed him again he had passed the wagon, and, pulling his pistol from his pocket, he rode up within a few feet of me, stopping his mule, and, pointing his pistol in my face, he said, 'Halt, you son of a bitch!' I halted. The pistol was still in my face. He then said, 'I am going to kill you, you damn black son of a bitch!' I said, 'I have done nothing for you to kill me, Mr. Sumner.' He said, 'Yes, you have; damn you!' and then snapped his pistol three times in my face. I had a shotgun with me. It was in my left hand, hanging down by my left side. When he saw that his pistol would not fire, he called to Porter to grab my gun. Porter was two or three yards from me when Sumner told him to take my gun. Porter made an effort to get my gun, and I grabbed for Mr. Sumner's pistol. He (Mr. Sumner) then rode off up the road in a gallop, and when about 15 or 20 feet from me he turned in his saddle. Aiming pistol at me, he snapped it again. It was at this time that I fired the fatal shot. When I shot him, his mule was not straight up and down the road,-was angling from right to left across the road. With his mule in this position, and having turned slightly in his saddle, it caused his back and right side to be exposed to me." Mrs. Houston, a witness for defendant, lived nearby the scene of the shooting, and she testified that she heard loud cursing and talking out in the road in front of her house, and that upon going to the door she saw Sumner with a pistol pointing in the direction of Nelson's face, and that she then ran out in the back yard, where her husband was, and in a little while heard a gun fire. John C. Stoutenborough, another of defendant's witnesses, testified as follows: "I was at the Van Pelt gin house at the time of the difficulty. *** Mr. Van Pelt [the state's main witness] and I were leaning against a bale of cotton, talking. Hearing a gun fire, and the bullets hitting in the...