Turner v. State

• Decision Date: 14 December 1892
• Citation: 97 Ala. 57,12 So. 54
• Parties: TURNER v. STATE.
• Court: Alabama Supreme Court

12 So. 54

97 Ala. 57

TURNER v. STATE.

Supreme Court of Alabama

December 14, 1892

Appeal from circuit court, Blount county; John B. Tally, Judge.

Brooks Turner was jointly indicted with one John Tolbert for the murder of one Brown. He was convicted of manslaughter in the first degree, and appeals. Reversed.

The indictment averred that said Brown was killed by being shot with a gun. The said John Tolbert not being arrested, on motion by the state a severance was had, and the defendant Brooks Turner was placed upon trial. Upon the state's introducing evidence showing that the said Brown came to his death by shots from a pistol in the hands of one John Tolbert, the defendant objected to the admission of this testimony on the ground that it was a variance from the allegations in the indictment that the deceased was killed by being shot with a gun. The court overruled this objection and the defendant duly excepted. The testimony for the state tended to show that the defendant and the deceased got into a dispute about a message that was sent to the wife of the defendant by the deceased in response to her refusing to lend him an axe, and that, upon the defendant's saying that "I allow to hurt the next man that insults my woman," deceased rushed upon the defendant with a rock hammer weighing from 12 to 15 pounds, and struck the defendant with the said hammer; that the blow knocked the pistol out of the defendant's hand, and that the defendant and the deceased then "clinched," becoming involved in a struggle; that the said John Tolbert then grabbed the pistol, and, cursing, said, "Get off of him," whereupon he fired two shots, wounding Brown in the arm and left side, from which he died eight days afterwards; that thereupon Tolbert walked off with the pistol in his hand, and when the defendant got up he also walked off in the same direction with said Tolbert. It was also introduced in evidence that said Tolbert was a stranger in the vicinity, having been there only about three weeks, and that he occupied a part of the same house with the defendant. The testimony for the defendant tended to show that the difficulty between the defendant and the deceased was brought on by the deceased,-he beginning the quarrel, and also provoking the fight by rushing upon the defendant with the rock hammer. It was also shown that the said Tolbert did not take any part in the difficulty, and had no connection with it, up to the time the deceased was on the defendant, when he ordered him to get off of the defendant, and, upon his refusing to do so, he fired the fatal shots. The defendant requested the following charges in writing: (1) "If the jury believe the evidence they will find the defendant not guilty." (2) "The jury is charged that Brooks Turner must have entered into this difficulty with malice aforethought, with a purpose deliberately formed, after premeditation, to take the life of deceased should it become necessary." (3) "The jury must be convinced, beyond a reasonable doubt, that prior to the difficulty ...