Poe v. State

• Decision Date: 24 April 1908
• Citation: 155 Ala. 31,46 So. 521
• Parties: POE v. STATE.
• Court: Alabama Supreme Court

46 So. 521

155 Ala. 31

POE v. STATE.

Supreme Court of Alabama

April 24, 1908

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Rad Poe was convicted of murder in the second degree for killing Wood Simmons, and appeals. Reversed and remanded.

See 38 So. 1037.

The facts are sufficiently stated in the opinion of the court. The questions asked the witness Hollinsworth, and noted in the opinion as 4, 5, and 6, related to a conversation between the defendant and two gentlemen who passed the witness a few minutes after the shooting was heard. Question 4 is "What did they say?" No. 5 is the answer: "One said 'You shot first,' and one said, 'No, you shot first,' and they said, 'Drive up, boys; there goes some one down the road to cut us off.' " No. 6 is an answer, and is: "If there was any difference in the report of the guns, as to which was the loudest, I could not tell it." They were all right together.

Exception 17 is as follows: "The defendant introduced McKimbrell and asked him, 'Were you ever at Hog Wallow Church, about two years before this killing occurred, when Simmons kicked Poe?' Objection was sustained to the question." 18 "Were you ever at Hog Wallow Church, about two years before this killing, when Simmons made an assault on Poe?" 19: "I will ask you if you were ever at Hog Wallow Church, about two years before this difficulty, when Simmons tried to draw a pistol on defendant Poe?"

Rich Wilcutt was introduced as a witness by defendant, and after testifying to a part of the conversation had with Simmons deceased, a month or two before the killing, in which Simmons had said that he did not like Poe, and that he had slapped him once at the church, and that if he ever got into another racket with him he wouldn't slap his face and kick him, but he would kill him, was asked this question: "What else did Simmons say about having kicked Poe?" Objection was sustained to this last question.

While examining Chris Frost, the defendant asked him the following questions: "Had you heard of threats against Poe, the defendant, when you talked to Simmons--threats that had been made since Rad's return from Jefferson county?" Objection was sustained to this question, and is the basis of exception 25.26: "I will ask the witness that if at the time he talked with defendant he had heard of threats Simmons had made since Rad's return to the effect that he would kill Rad?" Objection was sustained to this question.

The following charges were given at the request of the state: "(1) I charge you, gentlemen of the jury, that when a person sets up self-defense in justification or excuse of the killing, the burden of the proof is upon him to show to the jury by the evidence that there was a present, impending danger, real or apparent, to life or limb, or of grievous bodily harm, from which there was no other probable means of escape." Charge 8: "The court charges the jury that to prove beyond a reasonable doubt that the defendant is guilty does not mean that the state must make the proof of an eyewitness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If from all the evidence the jury believe that it is possible, or that it may be, or perhaps, the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle defendant to an acquittal. All that is required is that defendant is guilty, and if you so believe beyond all reasonable doubt from the evidence that the shooting occurred in this county before the finding of this indictment you must find the defendant guilty, although you may also believe from the evidence that it may be he is not guilty, or that it is possible he is not guilty." Charge 11: "I charge you, gentlemen of the jury, that if the deceased died from the effect of the wound inflicted by a pistol in the hands of a defendant, and such wound was intentionally inflicted in pursuance of a previously formed design to take life, he will be guilty of murder."

J. D. Acuff, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

HARALSON J.

Indictment was found against defendant, for the murder of Wood Simmons, in the circuit court of Walker county, at its spring term, 1905; and at the request of defendant in open court, on the 15th of September, 1906, the case was transferred to the Walker county law and equity court, in accordance with the act of December 5, 1900 (Acts 1900-01, p. 112).

The defendant moved to quash the venire, but the record is silent as to any action of the court on the motion. There is, therefore, no question as to a ruling on that motion for review.

The evidence for the state tended to show, that deceased and his young son were in a two-horse wagon, driving along a road from Corona, going home, and defendant and two companions came up, riding rapidly by, and caused deceased's mules to become frightened, but deceased drove on behind them, and when they had gone some distance beyond a bridge in the road, they got off their horses, deceased being 15 or 20 steps behind them; that defendant with an oath said to Simmons, "What are you trying to run over us for?" and he replied, that he was not trying to run over them, when defendant replied, he was a liar, and that he was trying to do so; that deceased then started on, and defendant began shooting at him, while he was seated in the wagon, and struck him three times, from the effect of which wounds he died in about five minutes.

The evidence for defendant tended to show, that defendant and his companions alighted from their horses, to adjust a stirrup strap of one of them that had been broken; that deceased got out from his wagon which had stopped, picked up a stick and commenced at once firing at defendant with a...