Watson v. State

• Decision Date: 09 April 1908
• Citation: 155 Ala. 9,46 So. 232
• Parties: WATSON v. STATE.
• Court: Alabama Supreme Court

46 So. 232

155 Ala. 9

WATSON v. STATE.

Supreme Court of Alabama

April 9, 1908

Appeal from City Court of Gadsden; Alsto V. Lee, Judge.

Daniel Mack Watson was indicted for the killing of Charles Ellenburg by shooting him with a pistol, was convicted of murder in the second degree, and was sentenced to the penitentiary for 20 years. From this judgment, he appeals. Affirmed.

During the examination of the witness Ashford counsel for defendant asked if he was not then under indictment for assault with intent to murder. The court sustained an objection to the question, and in answer to earnest insistence of counsel that such testimony was relevant the court said, speaking to the witness, "You need not answer that question," and turning to counsel for defendant, said: "I don't like to hear as intelligent counsel as represents the defendant ask such question. They know, or should know, the mere fact that a witness had been indicted for assault with intent to murder in no way impeaches said witness, and such evidence is not relevant." The defendant excepted to the remark of the court, made in the hearing of the jury whereupon the court turned to the jury and said to them that what he had said to counsel was not to have any effect upon them at all, and should not be considered by them one way or the other. The other facts sufficiently appear in the opinion.

At the request of the solicitor the court gave the following written charges for the state:

"(1) The court charges the jury that, to make out a case of justifiable self-defense, the evidence must show that the difficulty was not provoked or encouraged by defendant that he was or appeared to be so menaced at the time as to create reasonable apprehension of danger to his life or of grievous bodily harm, and that there was no other reasonable hope of escape from such present impending peril.

"(2) The court charges the jury that, to make a plea of self-defense available, the defendant must be without fault. If he was himself the first aggressor, he cannot invoke the doctrine of self-defense, even if the deceased was approaching him in a hostile manner; and whether the necessity to take life was real or only apparent, if brought about by the design, contrivance, or fault of defendant, he cannot be excused on the plea of self-defense.

"(3) The court charges the jury, if a party dangerously armed provokes a hostile demonstration with an undue advantage, he is guilty of murder, if he slays his adversary pursuant to a previously formed design to use his weapon in an emergency. Previous preparation for a rencounter evinces deliberation and premeditation, and, unexplained, is evidence of express malice."

"(6) In cases of homicide, the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence of the killing shows also that it was perpetrated without malice; and whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts in evidence, there can be no conviction for any degree of homicide less than murder."

"(8) If the defendant, in this county, and before the finding of the indictment, purposely killed Ellenburg by shooting him with a pistol, with a wickedness or

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