Sullivan v. State

• Citation: 102 Ala. 135,15 So. 264
• Parties: SULLIVAN v. STATE.
• Decision Date: 10 April 1894
• Court: Supreme Court of Alabama

15 So. 264

102 Ala. 135

SULLIVAN v. STATE.

Supreme Court of Alabama

April 10, 1894

Appeal from city court of Selma; J. W. Mabry, Judge.

James M. Sullivan was convicted of murder in the first degree, and appeals. Reversed.

The appellant was indicted and tried for the murder of William L Emerson, and was convicted of murder in the first degree, and sentenced to the penitentiary for life. Reversed and remanded.

The facts of the case referring to the exceptions reserved by the defendant to the action of the court in excusing one of the jurors are sufficiently stated in the opinion. The testimony for the state tended to show that on November 12, 1892, in one of the streets of Selma, the deceased, William L. Emerson and two other persons, were standing talking; that the defendant came up, "holding his hands in front of his waist, his left hand being held over his right," and, as he came up facing the three, he said: "We have had a big day to-day." To this the deceased replied: "Yes you have had several big days. You had one when you shot that man in the leg in front of the market house." The defendant responded: "Yes, G_____ d_____ you; I don't have to shoot you in the leg;" and at the same time, while standing about two feet from the deceased, the defendant drew a dirk, and plunged it into the breast of the deceased. During all of this time Emerson was standing still with both hands down by his side in a natural position, had nothing in his hands, and did not curse or make any movement towards the defendant. Immediately after being stabbed, the deceased staggered back, and fell, bleeding copiously from the wound, and called for a doctor. The deceased was then moved from the street to a drug store, and died in about 40 minutes after the cutting. The deceased repeatedly said to one of the witnesses that was standing by him, while he was lying on the floor of the drug store, "that he could not live; that he was dying." After this statement, while lying on said floor, the deceased said: "Jim Sullivan cut me. He cut me for nothing. I never did anything to him. I pray God to forgive him for it." The defendant objected to the introduction in evidence of that part of the deceased's statements that defendant "cut him for nothing," and "I pray God to forgive him," and moved the court to exclude these expressions from the jury on the ground-First, that they were merely conclusions of the deceased; second, they were the deceased's opinions; third, they did not relate to the circumstances or transactions of the killing. The court overruled this motion of the defendant, and to this ruling the defendant duly excepted.

The testimony for the defendant tended to show that upon coming up to where the deceased was standing with two other people, and the defendant addressing the remark to them, as stated above, the deceased replied to him in an angry manner, and cursed him; that the defendant told the deceased he had no pistol, and to go off and let him alone; that the deceased then started towards the defendant with his left hand raised, and his right hand upon or near his pistol pocket, and, when the deceased got near the defendant, the defendant struck at the deceased with his knife, and that the deceased's hand struck the back of the defendant's hand, and drove the knife into the deceased's breast.

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) "The court charges the jury that if the defendant did not provoke or encourage the difficulty, but approached the defendant [deceased] in an orderly and peaceful manner, and the deceased replied angrily and insultingly, and advanced towards the defendant, and placed his hands behind him in such manner as to indicate to a reasonable man that his purpose was to draw a pistol, and fire, the defendant was authorized to anticipate him, and stab him; and the rule in such case would not [be] raised, if it should turn out that the deceased was in fact unarmed, as the law of self-defense does not require the defendant to wait until the weapon is presented, ready for deadly execution." (3) "The court charges the jury that if the defendant did not provoke or bring on the difficulty, but approached the deceased in an orderly and peaceful manner, and the deceased replied angrily and insultingly, and advanced towards the defendant with one hand raised, and the other hand placed upon or in the direction of a pistol pocket, in such manner as to indicate to a reasonable man that his purpose was to draw a weapon and use it, the defendant was authorized to anticipate him, and cut first." (6) "The court charges the jury that, before they can convict the defendant of murder in the second degree, they must be satisfied from the evidence, beyond all reasonable doubt, that the defendant unlawfully cut or stabbed W. L. Emerson, and that he did the cutting or stabbing willfully or maliciously." (13) "If two persons fight willingly on a sudden quarrel or provocation, and one kills the other, the statute makes the killing manslaughter in the first degree." (16) "The court charges the jury that if one intentionally does an act calculated to take life, and death is unintentionally produced, the homicide is manslaughter in the first degree." (18) "The court charges the jury that the danger that will excuse one for killing another need not be real or actual. It may now be known that all the appearances of danger were false, and Emerson never intended to do defendant any harm, and that he did not have a pistol or other deadly weapon; yet, if the jury believe, from all the evidence in this case, that the appearances of danger surrounding the defendant at the time were such as to produce a reasonable belief in the mind of defendant that his life was in danger, or that he was about to suffer great bodily harm, and that there was no other reasonable means at the time, open to the defendant, to avoid the danger, but by taking Emerson's life, the defendant being without fault at the time, the law holds him harmless, and the jury must acquit him, although Emerson may have had no pistol or other deadly weapon."

P. H. Pitts, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

BRICKELL C.J.

The court made an order setting the day of trial, and that, with the persons drawn and summoned as petit jurors for the week, other names should be drawn, so as to increase the number to 75, a list of whom were to be served on the defendant. This course was pursued; and on the day of trial, in the process of the organization of the jury, the court was inquiring into and passing upon the qualifications of the persons appearing, in obedience to the summons, to serve as jurors. The name of Theodore Lacy was called, who was one of the regular jurors of the week. He responded, but said that, though summoned by the name of Theodore, his true name was Theophilus Lacy. Thereupon, ex mero motu, the court excused or discharged him from service as a juror, to which the defendant excepted.

1. The special statute in relation to the drawing and impaneling of grand and petit jurors, in the county of Dallas, requires that, whenever any person stands indicted for a capital felony, the court must, on the first day of the term, or as soon thereafter as practicable, make an order, conforming to section 4874 of the Code of 1876, commanding the sheriff to summon not less than 50, nor more than 100, persons including those summoned on the regular juries for the week, from whom the panel for the trial is to be selected. Upon the court, on the day set for the trial, if the cause is ready for trial, is imposed the...