Whatley v. State

• Decision Date: 29 April 1891
• Citation: 9 So. 236,91 Ala. 108
• Parties: WHATLEY ET AL. v. STATE.
• Court: Alabama Supreme Court

9 So. 236

91 Ala. 108

WHATLEY ET AL. v. STATE.

Supreme Court of Alabama

April 29, 1891

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Frank Whatley and Ellie Whatley, brothers, were jointly indicted and tried for the murder of Thomas Deakle. Ellie Whatley was convicted of murder in the second degree, and sentenced to the penitentiary for 20 years; and Frank Whatley was convicted of manslaughter in the first degree, and sentenced to the penitentiary for 8 years. The difficulty between the parties occurred on the night of August 6, 1890, at the house of Mr. and Mrs. Kreiger, "an aged German couple, who gave a birthday party, and invited the young people of the neigborhood." The deceased, the two defendants, one N Freeland, and others, were among the guests. Some of the young men had carried a jug of whisky, which they hid in the yard; and the evidence showed that all of them were drinking,-"were more or less under the influence of liquor, while Ellie Whatley was drunk; "or, as expressed by one of the witnesses for defense, "was blind staggering, crazy drunk." While most of the guests were in at the supper table Mrs. Kreiger asked Freeland to go out into the yard and invite Ellie Whatley in, and he went out for the purpose; but Ellie Whatley refused to come, took offense at something said by Freeland, assaulted him, cut him with a knife, and knocked him down. When Freeland succeeded in rising, and was holding Ellie Whatley, Frank Whatley ran out of the house, calling to Freeland, "Turn Ellie loose!" and struck him. Deakle, the deceased, who had been sitting at the table, ran out of the house towards the combatants, crying out: "Part them; don't let them fight!" The evidence for the state was that Deakle caught hold of Frank Whatley, and attempted to pull him away that Frank struck him with his fist, pulled him down, and held him while Ellie stabbed or cut him several times in the back and side, one of the blows penetrating between the ribs and inflicting a wound which caused the death of Deakle several days afterwards. The defendants' evidence tended to show that Deakle, when he ran up to the combatants, struck Frank Whatley with his fist, and knocked him down; that the parties all rushed together, and were on the ground when the fatal blow was struck; "that Frank Whatley did not hold Deakle for the purpose of letting Ellie cut him, and did not know, at the time of the struggle or before or after it, that Ellie was going to cut or had cut him." On this evidence the defendants requested the following charges in writing and duly excepted to their refusal: "(1) If the state of the case is such that, after an entire comparison consideration, weighing, and sifting of all the evidence it leaves the minds of the jury in that condition that they cannot say they have an abiding and absolute belief of the guilt of the defendants, they ought to find them not guilty. (2) If the jury believe from the evidence that at the time of the commencement of the fight between Ellie Whatley and Freeland, if they believe from the evidence that a fight took place between them, and, that after it had commenced, Frank Whatley ran out to where it was going on; and that, after he got there, it appeared from all the evidence that Ellie and Freeland were engaged in a fight, and it reasonably appeared to him that his brother Ellie was in danger of grievous bodily harm; and that it would have so appeared to any reasonable man; and that it also appeared that said Frank Whatley could not prevent the reasonable appearance of danger of grievous bodily harm; and that it would have so appeared to any reasonable man; and that it also appeared that said Frank Whatley could not prevent the reasonable appearance of danger of grievous bodily harm to his brother, Ellie, without striking said Freeland in defense of his brother, even though it afterwards turned out that Ellie was not acting in self-defense, but as matter of act was aggressor, in the difficulty which finally resulted in the death of Deakle, unless Frank Whatley combined or confederated with his b...