Stoball v. State

• Citation: 23 So. 162,116 Ala. 454
• Parties: STOBALL v. STATE.
• Decision Date: 28 January 1898
• Court: Supreme Court of Alabama

23 So. 162

116 Ala. 454

STOBALL v. STATE.

Supreme Court of Alabama

January 28, 1898

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Callie Stoball was convicted of murder in the second degree, and appeals. Affirmed.

The indictment against the defendant in this case charged that she "unlawfully, and with malice aforethought, killed Sallie Williams, against the peace and dignity of the state of Alabama." The defendant was tried under this indictment, convicted of murder in the second degree, and sentenced to the penitentiary for 25 years. Before the trial had commenced, and before the jury was impaneled to try her case, the defendant moved the court to quash the venire, and as grounds therefor, assigned the following: (1) The defendant was not present when the venire was drawn; (2) the defendant was present when the day for the trial was set, and when an order was made for the drawing of the venire, but after the making of said order by the court the sheriff carried the defendant to jail, where she remained when the venire or jury was drawn. The facts of the defendant's motion were admitted to be true by the state, and with this admission the motion was submitted to the court, and the court overruled the motion, and the defendant then and there duly excepted. The defendant also made a motion in arrest of judgment, upon the same grounds, which motion was overruled and the defendant duly excepted. Upon F. V. Merriwether being introduced as a witness for the state, he was asked the following question: "Do you know where Sallie Williams is said to have been killed?" The defendant objected to this question upon the grounds that it assumed, as a fact proven, that Sallie Williams was killed, and was killed at a certain place. The court overruled the objection, and the defendant duly excepted. The witness answered he did, and then testified that he knew both the defendant and Sallie Williams, and that on the night of December 24, 1896, he was sent for to see Sallie Williams; that he found her dead, with a pistol-shot wound through her head; that he found in Sallie Williams' house two bullets; and that in front of the house he found an iron bar. The state introduced another witness, who testified that on the evening of December 24 1896, in the county of Montgomery, Ala., the defendant came by the house of Sallie Williams with a pistol in her hand that the two engaged in a quarrel, and passed several blows that they were separated, and Sallie Williams then ran into her house and shut the door; that the defendant attempted to break the door down; and that, upon the door being opened the defendant, who was standing about 10 steps from the door of the house, fired with her pistol three times in the direction of Sallie Williams. The defendant's evidence tended to show that, as she was coming by the house of Sallie Williams, Sallie Williams ran out of the house, and, after accusing the defendant of having talked about her, struck the defendant two or three times; that Sallie Williams ran into her house, and, after throwing several bricks at the defendant, picked up an iron bar about two feet long and two inches wide, and, just as she threw it at the defendant, the defendant fired twice at said Sallie Williams. This was all the evidence in the case. The court thereupon, in its general charge, instructed the jury that "there is no evidence which tends to support the charge of manslaughter in the second degree." To the giving of this charge the defendant duly excepted. The court, in its general charge, further instructed the jury as follows: "'Malice,' as the word is used in courts of law, signifies a wrongful act done intentionally, without legal justification or excuse. The word, as commonly used in the everyday affairs of life, has, I believe, the meaning of personal hatred or ill will. This is something more than its meaning here. In this case it signifies the formed design on the part of the defendant to take the life of the deceased unlawfully, not in self-defense, and without such provocation allowed by the law to be such as would repel the imputation of malice. In other words, malice is criminal intention." To the giving of that part of the charge which was in these words, "In this case it signifies the formed design on the part of the defendant to take the life of the deceased unlawfully, not in self-defense, and without such provocation allowed by law to be such as would repel the imputation of malice," the defendant excepted. And to the giving of that part of the charge which was in these words, "In other words, malice is criminal intention," the defendant excepted. The court further instructed the jury, in its general charge, as follows: "Before the defendant in this case can set up the defense of self-defense, there must have been at the time a present, impending, imperious necessity to shoot." To the giving of this portion of the court's general charge, the defendant duly excepted. The bill of exceptions recites that "when this exception was taken the court explained to the jury, before they retired, that the necessity need not be real, but an apparent necessity to shoot was sufficient to enable the defendant to set up self-defense." The defendant requested the court to give the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The defendant was under...