Rose v. State

• Court: Alabama Supreme Court
• Writing for the Court: TYSON, J.
• Citation: Rose v. State, 144 Ala. 114, 42 So. 21 (Ala. 1905)
• Decision Date: 15 June 1905
• Parties: ROSE v. STATE.

42 So. 21

144 Ala. 114

ROSE v. STATE.

Supreme Court of Alabama

June 15, 1905

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

"To be officially reported."

One Rose was convicted of manslaughter in the second degree, and he appeals. Affirmed.

The defendant was indicted and tried for the murder of Tommie Jackson, and convicted of manslaughter in the second degree.

The evidence tended to show that the deceased was shot, and died three days later from the effects of the wound. It was further shown that on the day of his death and on the day before, deceased repeatedly declared that he was going to die. Deceased had a written declaration prepared by a magistrate made after his declaration that he was going to die. This written declaration was offered in evidence by the state and objected to by the defendant, who showed that when it was being taken down by the magistrate the deceased expressed himself as feeling very well and asked the magistrate if he thought he was going to die. The court overruled the objection and admitted the declaration in evidence. This declaration tended to show that the defendant shot him without provocation. The evidence further tended to show that, immediately after the death of Jackson, the defendant went to Florida and remained there until he was arrested and brought back. The witness Cowart was permitted to testify over the objection of the defendant that he met the defendant near the place where Jackson was shot, soon after the shooting, and told defendant that Tommis Jackson had been shot and that he had heard that the man who did the shooting was named Rose. The defendant replied that his name was Rose. The court in its general charge to the jury said "Defendant cannot avail himself of the plea of self-defense if he was at fault in bringing on the difficulty, and did any act which incited or provoked the difficulty; that if the defendant was at fault in striking at the house of Jackson with his whip, if he, in fact, struck at the horse with his whip, and if he thereby brought on or provoked the difficulty, he cannot avail himself of the plea of self-defense." The court also charged the jury that "a reasonable doubt means a doubt growing out of the evidence for which a reason can be given." The defendant requested the following written charges which were refused by the court: (7) The court charges the jury that if they are reasonably satisfied from all the evidence in the case that the defendant was, to ordinary appearances, in imminent peril of his life or limb, from which there appeared to be no reasonable mode of escape, and that the defendant did not provoke or encourage the difficulty, and under this reasonable apprehension the defendant fired the fatal shot and that he did not fire the shot in malice, then the jury should not convict the defendant. (11) If the jury do not believe the facts detailed in the dying declaration of Tommie Jackson, they should disregard them entirely. (4) If contradictory statements by the state's witnesses on material points are made, this may create a reasonable doubt of the guilt of the defendant.

Foster Samford & Carroll, for appellant.

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

TYSON J.

We are of opinion that the dying declarations of the deceased were properly admitted. Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am. St. Rep. 17.

The testimony of the witness Cowart was also properly admitted. If the occurrence between him and defendant can be construed as a confession by the...