Thomas v. State

• Decision Date: 04 March 1904
• Citation: 139 Ala. 80,36 So. 734
• Parties: THOMAS v. STATE
• Court: Alabama Supreme Court

36 So. 734

139 Ala. 80

THOMAS v. STATE

Supreme Court of Alabama

March 4, 1904

Appeal from City Court of Talladega; G. K. Miller, Judge.

William Thomas was convicted of murder in the first degree, and he appeals. Reversed.

On the trial of the case the evidence for the state tended to show that the defendant and the deceased were riding together in a buggy, and that upon approaching some other men in the road they stopped; that the deceased was drunk, and was proceeding to give the men whom they met a drink; that the defendant told him to keep quiet, whereupon the deceased hit the defendant with his hand; that the defendant then got out of the buggy, and told the deceased to get out; that, upon the deceased refusing to do so, the defendant drew his pistol and, pointing at the deceased, again ordered him to get out of the buggy; and that while the deceased was getting out of the buggy the defendant shot him. It was shown that the deceased was carried to a hospital in Birmingham, and that while he was being operated upon on account of the wound inflicted by the defendant, he died. There were four physicians examined, each of whom testified that they had examined the wound inflicted upon the deceased, and that it was a dangerous wound; three of the physicians testifying that death would have resulted without an operation. During the examination of Sanders Turner, and after he had testified that he was present at the time the deceased was shot, and had stated the circumstances of the shooting, he was asked by the solicitor for the state if he saw the defendant and had any conversation with him at any time after the shooting, and was requested to state what he did and what he said. The witness, in answer to this question, testified that he saw the defendant the next morning after the shooting; that the defendant asked him if he (the witness) had said anything about the shooting, and stated that the deceased did not know who shot him, and then said that, if he (the defendant) heard anything about it, "he was going to leave." The bill of exceptions then contains the following recital "To the question eliciting this conversation, and to the answers thereto, defendant objected, the court overruled the objection, and the defendant excepted. Vassar L. Allen, a witness for the state, testified that he was an attorney at law, and lived in Birmingham; that he was at the hospital in the city of Birmingham at the time the deceased was operated upon, and was present at the operation. This witness then testified that the deceased died on the operating table in less than five minutes after the surgeon's knife was applied to the swelling near his collar bone, which was the result of the wound, and which the physicians termed an "aneurism" or blood tumor. The defendant objected to the testimony of the witness as to the deceased having died on the operating table, because the witness was not a physician, and moved to exclude the same from the jury. The court overruled the objection and motion, and the defendant duly excepted. The defendant was not sworn as a witness, and did not testify in his own behalf.

In the court's general oral charge to the jury, after defining murder in the first and second degrees, he instructed the jury as follows: "Manslaughter in the first degree is also embraced in this indictment. Manslaughter in the first degree is the unlawful killing of a human being without malice; that is, as the unpremeditated result of passion-heated blood, caused by a sudden, sufficient provocation. Now, if the defendant unlawfully, but without malice, killed John Leonard by shooting him with a pistol and such killing was the result of passion-heated blood suddenly aroused without sufficient provocation, solely, then that would be manslaughter in the first degree." To this portion of the court's oral charge to the jury the defendant separately excepted, and also separately excepted to the other portion of the court's oral charge to the jury which is copied in the opinion. The defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: "(1) Manslaughter is the unlawful and intentional killing of a human being without malice or implied, and if the jury believe beyond a reasonable doubt that Leonard struck Will Thomas a blow on the head with his fist, and that while angry from such blow, and with no time for reflection, Will Thomas immediately and without malice shot Leonard in the arm, from which shot Thomas died, then the jury may find Will Thomas guilty of manslaughter, but of no higher offense. (2) A...