Stevens v. State

• Decision Date: 30 June 1903
• Parties: STEVENS v. STATE.
• Court: Alabama Supreme Court

35 So. 122

138 Ala. 71

STEVENS v. STATE.

Supreme Court of Alabama

June 30, 1903

Appeal from Circuit Court, Colbert County; A. H. Alston, Judge.

George Stevens was convicted of murder, and appeals. Affirmed.

The appellant in this case, George Stevens, was indicted and tried for the murder of Jodie Weston by shooting him with a pistol, was convicted of murder in the second degree, and sentenced to the penitentiary for 40 years. When the case was called for trial, the defendant moved the court to grant him a continuance upon the ground that five of his material witnesses were absent, four of whom had not been found or summoned, notwithstanding subp nas had issued for them, and the other of the absent witnesses had been summoned, but were absent without defendant's procurement or consent. It was shown to the court that the defendant had six witnesses present. The court refused to grant the continuance asked for, and put the state on the written admission of what the defendant expected to prove by the absent witnesses, and forced the defendant into the trial of the case. To this ruling of the court the defendant duly excepted.

On the trial of the case it was shown that Jodie Weston was killed in the basement of Blount's saloon in Sheffield, Ala and that at the time he was killed there were two crap games going on in said basement at two different tables; that at one table white men were playing and at the other table several negroes were playing, including the defendant. The evidence for the state tended to show that while the deceased was standing at the table where the white people were playing there was a great deal of fuss being made by the negroes at their table; that, upon complaint being made of the fuss, the deceased went over to where the negroes were playing, and tried to quiet them; that he had a pistol in his hand at the time; that, after trying to quiet the negroes, he went away and the defendant, as he turned away, cursed him, using a very opprobrious epithet; that as the deceased turned towards the defendant, the latter drew his pistol, and as he was rising from his seat fired on the deceased, and then shot a second time, from the effects of which wounds the deceased died. The evidence for the defendant tended to show that when the deceased came to the table where the defendant was playing, and tried to quiet them, he had in his hand a pistol; that upon the defendant saying that it was the negroes' night, deceased cursed him, and leveled his pistol upon him as if to shoot, and thereupon the defendant fired upon the deceased, inflicting the fatal wound from which he died. Charles Weston, a brother of the deceased testified that he was present at the time Jodie Weston was killed; that immediately after the deceased was shot he went to him where he had fallen, and the deceased said to him "I am killed." The defendant objected to the witness testifying to this statement made by the deceased because the character of the wound was not shown. The court overruled the objection, and the defendant duly excepted.

During the examination of Dr. Morris, a physician, who testified to having examined the wounds of the deceased, and that he treated them, he was asked, "Did you tell Weston he was going to die?" The defendant objected to this question upon the ground that the defendant was not present at the time referred to. The court overruled the objection, and to this ruling the defendant duly excepted. The witness testified that he told Weston that he was going to die, and the court overruled the defendant's motion to exclude this testimony. The witness then testified to the statement made by the deceased after having been told that he was going to die.

The state introduced the father of Jodie Weston, the deceased, who testified that after he was shot he went to the bedside of his son, and told him that he was going to die; that this statement was made just after the statement made to the deceased by Dr. Morris, and that thereupon the deceased made a statement as to the circumstances of the difficulty. To the introduction of this statement in evidence as dying declarations the defendant separately objected. The court overruled each of such objections, and the defendant separately excepted.

The defendant, as a witness in his own behalf, testified as follows: "I had been 'flunkeying' at the saloon, and was down in the cellar on the night of the killing, with a crowd of other negroes." He further testified that at the time he fired the fatal shot the deceased had his pistol drawn and leveled at him, and had snapped it at him.

In rebuttal the state introduced as a witness one Floyd Gothard, who testified that he was the officer who arrested the defendant. He then testified that he, together with other officers, went to the place where the defendant was; that the other officers remained outside of the house, and he went alone to the defendant's room to arrest him; that he made no threats, nor offered any inducement or hope of reward, nor did he tell him that it would be best to make a confession; that it was in the nighttime, and was dark; that when he arrested him the defendant was very much frightened, and asked him whether they would hurt him, and whether they would kill or hang him; that he told the defendant they were not going to do anything to him but take him to jail. Thereupon the witness was asked whether or not the defendant said anything to him about the difficulty, and what it was. The court overruled the objection, because it had not been shown that the proposed confession was voluntary, and that the question called for illegal and incompetent evidence. The court overruled the objection, and the defendant duly excepted. In answer to the question the witness then testified that the defendant told him that Weston, the deceased, did not pull his pistol, and that he shot the deceased. The defendant moved to exclude this testimony because it was not shown that the confession made by the defendant was voluntary. The court overruled the motion, and the defendant duly excepted. On the cross-examination of this witness he was asked the following question: "At the time of the shooting, wasn't you, as an officer, looking for Weston on the streets?" The state objected to this question. The court sustained the objection, and the defendant duly excepted. The defendant reserved separate exceptions to several portions of the court's oral charge to the jury, but under the opinion it is not deemed necessary to set out the separate portions of the charge at length.

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) Gentlemen of the jury, I charge you that you should not disregard the statement of the defendant simply because he is the defendant. (2) I charge you, gentlemen of the jury, that under the evidence in this case the defendant was not required to retreat when he was assaulted if you believe from the evidence that he was assaulted by Jodie Weston. (3) I charge you that a person in his own house is not required to retreat, and this principle applies to those who are employed about the premises as well as to the owner of the premises. (4) A man's house or place of business is his castle, his place of refuge. The fact that one is within his castle serves as a warning to deter an assailant from intruding therein. (5) The law regards with great jealousy and vigilance the peace and security of the dwelling. A trespass upon it is more than a trespass upon property. It is the same as a trespass upon a person. (6) Although the defendant may not have established or made good his plea of self-defense, still you would not, for that reason alone, be required to convict him of murder in the first or second degree, but you might find him guilty of manslaughter in the first degree. (7) If the jury believe the evidence beyond a reasonable doubt, they must find the defendant not guilty."

The defendant separately excepted to the court's giving, at the request of the state, the following written charges "(1) 'Deliberate' and 'premeditated,' as those words are used in the statute, mean only this: that the slayer must intend, before the blow is...