Watson v. State

• Decision Date: 30 June 1916
• Docket Number: 2 Div. 139
• Citation: 72 So. 569,15 Ala.App. 39
• Parties: WATSON v. STATE.
• Court: Alabama Court of Appeals

72 So. 569

15 Ala.App. 39

WATSON v. STATE.

2 Div. 139

Court of Appeals of Alabama

June 30, 1916

Appeal from Circuit Court, Choctaw County; Ben. D. Turner, Judge.

Ed Watson was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Ed Kelly was shown to be the cousin of the defendant, and the court of its own motion excused him as a juror. Sturdivant upon his examination as a juror, expressed a doubt as to his willingness to convict upon circumstantial evidence, and was excused by the court of its own motion; the solicitor also excused the juror Sturdivant. The juror Hurst stated that his grandfather and the grandfather of the defendant were brothers, and he was excused by the court. The evidence tended to show that Walter Melton died from a pistol shot on the front porch of Martin's store, and that the pistol from which the shot was fired was in the hands of Ed Watson. The evidence for the defendant tended to show self-defense. The following are the charges refused to the defendant:

(11) Unless the evidence excludes every reasonable supposition but that of guilt, the jury must acquit.

(6) I charge you, gentlemen, that you may consider the good character of the defendant to generate a reasonable doubt after you have considered all the testimony; if the evidence of such character raises such a doubt, you must acquit the defendant.

(7) The court charges the jury that if the defendant, at the time of firing the fatal shot, had a reasonable apprehension of imminent danger, he could lawfully act upon appearances and kill the deceased, if the defendant was without fault in bringing on the difficulty.

(22) The court charges you, gentlemen of the jury, that it is not necessary that there should actually be danger of death or great bodily harm in order to justify the taking of human life, but if the jury are satisfied from all the evidence in the case that the circumstances attending the firing of the fatal shot was such as to impress the defendant with a reasonable belief at the time of the killing that it was necessary in order to prevent death or great bodily harm to his person, and he was free from fault in bringing on the difficulty, then you must acquit the defendant.

Gray &amp Dansby and O.B. Christoper, all of Butler, and W.A. Gunter and Tilley & Elmore, all of Montgomery, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

BROWN J.

The duty rests upon the trial court to determine, not only whether the veniremen possess the general qualifications prescribed by the jury law for jury service in general, but also whether they are competent jurors for the trial of the case in hand. "This being the judge's duty, it is of no consequence whether he rejects an unfit venireman ex mero motu, or upon the suggestion of another." O'Rear v. State, 188 Ala. 75, 66 So. 82. No error, therefore, is shown in excusing the jurors Kelly, Hurst, and Sturdivant. Griffin v. State, 90 Ala. 596, 8 So. 670; O'Rear v. State, supra.

Conceding that the defendant's question to the witness Jim Green, eliciting testimony as to whether the state's witness Martin could have seen the difficulty between the defendant and the deceased from the point the witness Martin was located at the time was a proper question, and that it was error for the court to sustain an objection thereto, injury therefrom was averted by the subsequent admission of the testimony of the witness, to the effect that subsequent to the difficulty the witness Green placed himself in the same position Martin was in at the time of the difficulty and looked out at the window, and that he could not see the "gallery or front of the store" from that position.

The witness J.A. Green, in answer to the question asked by defendant's counsel, "If there had been any pistol shot could you have heard it?" answered, "Yes sir;" and while...