Sanders v. State

• Decision Date: 31 January 1895
• Citation: 105 Ala. 4,16 So. 935
• Parties: SANDERS v. STATE.
• Court: Alabama Supreme Court

16 So. 935

105 Ala. 4

SANDERS v. STATE.

Supreme Court of Alabama

January 31, 1895

Appeal from criminal court, Jefferson county.

Will Sanders was convicted of murder in the first degree, and appeals. Reversed.

The appellant was indicted and tried for the murder of Wiley Roberts, was convicted of murder in the first degree, and sentenced to the penitentiary for life. On the trial of the case, as shown by the bill of exceptions, the state introduced evidence tending to show that the defendant and deceased quarreled about some mining tools; that deceased was standing on the porch of the house, which had been occupied by him and the defendant, about three or four feet from the latter, the defendant being in the doorway; that as the defendant pointed his gun at the deceased, John Hill, a half-brother of the defendant, knocked the gun down, when the gun fired, the load taking effect in the deceased's thigh, and from the effects of this wound the said Wiley Roberts died. The testimony for the defendant tended to show that the shooting of the deceased was accidental; and that the deceased said the shooting was accidental; that he did not want the defendant indicted. In rebuttal the state called the witness John Hill, who had testified for the defendant stating at the time that it recalled the said witness for the purpose of laying a predicate to contradict him, and then asked the said Hill the following question: "Did you swear on preliminary trial in this case that deceased had a knife in his hand when shot?" The defendant objected to the question, on the grounds: First, that it called for illegal, irrelevant, immaterial, and incompetent evidence and, second, that the evidence on the preliminary trial was taken down in writing, and such writing was, therefore, the best evidence. The court overruled the defendant's objection, and the defendant duly excepted thereto. The bill of exceptions recites that: "The evidence introduced when witness Hill was recalled, tended to show that the testimony on the preliminary trial was reduced to writing, as required by law. The solicitor then produced what purported to be the written testimony, and had it in his hand when he propounded the question. The witness Hill answered that he did swear before the magistrate on preliminary trial that the deceased had a knife when he was shot;" and the paper was not offered in evidence nor proven. The defendant moved the court to exclude this evidence, on the grounds that it was irrelevant, immaterial, and incompetent, and that it was secondary evidence. The court overruled the motion, and the defendant duly excepted. The defendant, in his own behalf testified to facts and circumstances tending to show that the shooting of the deceased was accidental. The facts relating to the rulings of the court in reference to the witness Parsons being introduced as a witness, and also as to his testimony, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury have a reasonable doubt as to whether the shooting alleged in the indictment was accidental or not, you must find defendant not guilty." (2) "If the jury have a reasonable doubt as to whether or not the defendant was prompted by malice, they will acquit him." (3) "If the shooting was accidental, even if the...