Parker v. State
| Decision Date | 07 January 1890 |
| Citation | 7 So. 98,88 Ala. 4 |
| Parties | PARKER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.
The defendant in this case, Scott Parker, was indicted for the murder of Simon Anderson, by shooting him with a gun, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 50 years. The difficulty between them occurred in May, 1889, on the premises of the Coaldale Mining Company, in the presence of several persons who testified, in substance, that when the parties met, being about 10 or 12 feet apart, they began to curse and abuse one another, the defendant having his gun in his hand, and the deceased having his hand on his pistol pocket; that the defendant threw up his gun, and pulled the trigger, but the "gun snapped;" that he then retreated backwards very slowly, while he put new caps on his gun, still holding it in a position to shoot, and followed by the deceased; that after the defendant had thus moved backwards about 40 or 50 feet, followed by the deceased, cursing and abusing each other, the deceased said, "I'll take no more from you," and pulled out his pistol, when the defendant fired and killed him instantly. The defendant introduced evidence of threats made against him by the deceased on the morning of the difficulty, declaring his intention to kill defendant that day, which threats were communicated to defendant about two hours before the parties met; and he testified in his own behalf to other threats previously made to him in person by the deceased.
The defendant requested the court to give the following charges in writing, and duly excepted to the court's refusing to give each one of them. (1) "Even if the jury should find from the evidence that the defendant was in the wrong in the first instance, yet a space for repentance is always open and when a combatant withdraws as far as he can without putting himself in greater peril, and his adversary pursues him, if the taking of life becomes necessary to save his own he will be justified." (2) "When a person has reasonable cause to apprehend a design on the part of another to do him great bodily harm, and there is cause to apprehend immediate danger, he may act upon appearances, and may kill his assailant, if necessary to avoid the danger." (3) "Although the jury may believe from the evidence that the defendant first drew his gun on the deceased, yet if they further believe from the evidence that afterwards, before the fatal shot was fired, he attempted to withdraw from the conflict by retreating or otherwise, then the right of the deceased to follow him up, and to use or to threaten violence against him, ceased; and if the deceased did not then desist from attempting to use violence towards the defendant, then defendant's right to defend himself revived; and if he then found himself in apparent danger of losing his life, or of sustaining great bodily injury at the hands of the deceased, he had the same right to defend himself that he would have had if he had not commenced the conflict." (4) "Justifiable homicide is the killing of a human...
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