Turner v. State

• Citation: 160 Ala. 40,49 So. 828
• Parties: TURNER v. STATE.
• Decision Date: 18 May 1909
• Court: Supreme Court of Alabama

49 So. 828

160 Ala. 40

TURNER v. STATE.

Supreme Court of Alabama

May 18, 1909

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

J Fletcher Turner was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

Simpson and Mayfield, JJ., dissenting in part.

Lackey & Bridges and Thomas L. Bulger, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J. J.

Fletcher Turner was indicted for murder, and on the trial of his case was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of five years in the penitentiary. From the judgment of conviction he has appealed and here seeks a reversal of the judgment.

The killing was not disputed by the defendant on the trial, nor did he deny that it was done intentionally and with a deadly weapon; but he sought to justify under the doctrine of self-defense. The only questions presented by the record for determination here relate to the rulings of the trial court on the admissibility of testimony, and to the refusal by that court of certain charges, in writing, requested by the defendant.

It is the well-settled rule in this jurisdiction, in cases of this character, and where the testimony tends to show self-defense, that threats made against the defendant by the deceased are competent, as evidence, to enlighten the jury trying the case upon the question of who was probably the assailant; and, as was said in the case of Roberts v State, 68 Ala. 156, 168: "Whether * * * threats taken in connection with the circumstances of the affray leading to and accompanying the killing, are sufficient to justify the act of homicide, is a question of fact for the jury, and it is not permissible for the court to determine it as matter of law. They cannot be excluded if there is the slightest evidence tending to prove a hostile demonstration, which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or of other grievous bodily harm."

Here the testimony tended to show that ill feeling had grown up between the deceased and the defendant; that the deceased bore the reputation of being a man of violent and turbulent character, and had made dire threats against the defendant, down to within a few hours before the fatal shooting occurred. In this state of the case, the court very properly recognized the principle of law stated above, and admitted evidence of threats, both communicated and uncommunicated. But the court declined to allow defendant to prove by a witness, Wash Morgan, that on Saturday night; next preceding the Monday on which Henderson (deceased) was killed, he (the witness) was in "Dadeville at a show, that he saw Henderson at the show, and Henderson asked him if he had been in the show, and witness replied, 'No,' and Henderson gave witness a ticket into the show, and asked him to go in and see if Fletch Turner (defendant) was in there, and to come back and let him know if Turner was in there." The record discloses that it had already been shown, by witness Hall, that Henderson, late on that Saturday afternoon, exhibited a pistol to him and said, "Turner has not treated me right, and I am going to have satisfaction," and that this was communicated to Turner on the next day, Sunday. We are constrained to hold that in not allowing the testimony as above indicated the trial court committed reversible error. The ruling of the court cannot be justified upon the idea that the testimony would have illustrated nothing. On the contrary, in connection with Hall's testimony, it was competent for the jury, if the testimony had been admitted, to say what weight it should have in determining the intensity of deceased's feelings against the defendant, and his anxiety to meet him; and in connection with the defendant's testimony it would have been competent to be considered by the jury in determining who was probably the aggressor, and whether or not the accused, at the time of the killing, was in apparent imminent danger to life or of other grievous bodily harm. Roberts' Case, 68 Ala. 156, 164; Gunter's Case, 111 Ala. 23, 29, 20 So. 632, 56 Am. St. Rep. 17; Rutledge's Case, 88 Ala. 85, 7 So. 335.

Nor can the ruling of the court be justified on the theory of error without injury. It may be that the evidence offered was, in its nature and effect, simply cumulative (though we do not decide this point); but, as it was competent, we cannot possibly say that the refusal of the trial court to admit it was without injury. The other testimony in respect to threats was given by witnesses other than Wash Morgan; and the demeanor of the respective witnesses was a subject for consideration by the jury, in determining the weight of their testimony. The jury might not have yielded to the testimony of the other witnesses as much credence as they deemed that of Morgan's entitled to. In other words, it is within the province of the jury to determine the weight that should be accorded to the testimony of witnesses, and, having the witnesses before them, they may, for this purpose, draw comparisons between the...