Williams v. State

• Decision Date: 07 June 1906
• Citation: 41 So. 992,147 Ala. 10
• Parties: WILLIAMS v. STATE.
• Court: Alabama Supreme Court

41 So. 992

147 Ala. 10

WILLIAMS v. STATE.

Supreme Court of Alabama

June 7, 1906

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

"To be officially reported."

John Williams was convicted of murder, and he appeals. Affirmed.

The defendant was indicted, tried, and convicted for the murder of R. L. Hipp. The indictment was preferred and the trial had at a special term of the Cullman circuit court held by order of the presiding judge of the Eighth judicial circuit. The killing is alleged to have occurred on the 11th day of April and the order for the special term was made the 18th day of April, 1905, calling the special term to convene on May 22 1905. The defendant moved for a change of venue upon the grounds that on account of public sentiment and the fact that the defendant was a poor, obscure, and unknown man, and the deceased a prominent and influential man, the defendant could not get a fair and impartial trial. Numerous affidavits were offered for and against the motion. The order of the court calling the special term was attempted to be offered in support of the motion, as was also the order of the court removing the prisoner from the Cullman jail to the Madison county jail. The newspaper account of the killing and of the history of the parties connected therewith, together with their account of the state of public feeling, was also offered. The court overruled the motion and put the defendant upon the trial. In selecting the jury, one Wright was called and examined under oath, pronounced competent by the court and accepted by both state and defendant as a juror; but before he was sworn in, he stated on oath that his wife's condition was such as absolutely to demand his presence and attention, whereupon the court excused him, and the defendant excepted. Dr. R. H. Beard testified that he saw the body of Hipp the night of the day he was killed, and that there were wounds upon it, one under the eye and one in the back of the head; the last-named one being a penetrating wound, entering from the back of the head just above the right ear and a little back of it. The defendant objected to the statement on the ground that the witness was not shown to be an expert. The evidence tended to show that Deputy Sheriff Dunlap together with Hipp and others, had gone out to the house of Williams; the deputy sheriff having in his possession a writ of possession issued from the circuit court against Williams to remove him from the possession of the house and lands he was then occupying. That Hipp was the attorney of the plaintiff in the writ and was there to receive the possession of the house and land from the deputy sheriff. The state offered to introduce this writ of possession in evidence, but the defendant objected, and the court overruled the objection.

The assignments of error referred to in the opinion are as follows: "(12) In overruling appellant's objection to solicitor's question to witness Woodruff, 'You asked Williams where the others were,' and in holding 'The predicate is sufficient.' (13) In overruling appellant's motion to exclude statement of witness Woodruff that 'they all got away but him, and he was not able'; said expression being attributed to defendant. (14) In overruling the defendant's objection to the solicitor's question to the witness Woodruff: 'Was there anything said about where he was hit or anything of that sort--about where the ball hit him? * * * (16) In overruling defendant's objection to solicitor's question to witness Ascue, 'what did you hear Williams say?' "

The witness Woodruff testified as follows: "I was at Williams' house after the tragedy. When I got there, I saw Hipp lying with his feet upon the veranda and his face toward the ground. He was shot. Williams was walking in the back yard about ten steps from the porch and near the well with a pistol in his hand. Mr. Hall came up and asked Williams where were the rest of them, and Williams said they all got away but 'that one, and he is hardly able to get away.' Williams was about ten steps from Hipp's body when I saw him." Witness then testified that he did not threaten Williams; that he had no gun, stick, or pistol, and did not promise Williams anything, nor offer him anything, to tell what had occurred, nor tell him that it would be better to tell something about the matter. "No one took hold of Williams. Gober did not threaten him or promise him anything or make any demonstration against him." The solicitor asked the witness: "You asked him where the others were?" There was objection to this question, but the court held the predicate sufficient, and overruled the defendant's objection. The defendant also moved the court to exclude the statement that Williams said that all got away but deceased, and he was not able, on the grounds that it was not a part of the res gestæ, and that a proper predicate for its admission had not been laid. Witness, testifying further, said: "I washed Mr. Hipp's face." The solicitor then asked: "Was anything said there about where he was hit, or anything of that sort--about where the ball hit him?" Defendant objected to the question as leading and irrelevant, and the court overruled the objection. Witness Noah Holmes testified that he was present at the time of the shooting; that he went to the house with Dunlap, Hipp, and others. He further testified that while there he heard a report of a gun in the house; that he heard another report, and then saw Dunlap come out the door and turn to the left as he came out and run to the end of the porch, and then "Williams came to the door just as Dunlap went to jump off the porch, and Williams shot at him. Dunlap kept on around the house and Williams turned to the right and ran out in the yard and shot at Ryan." The solicitor asked, "Where was Ryan?" and the witness replied: "He was at the buggy where I was, and was running. Williams shot at Ryan, and, as well as I remember, turned to the right and ran to the gate that goes to the lot at the back end of the house and went around the house again." The defendant objected to all this testimony separately, but the objection was overruled. Ryan's testimony was of similar import. Newman testified that he knew Williams and had a conversation with him about a year before the date of his testimony, in which Williams said to him that he had decided not to give possession of his place, and that if they came out there to put him out, "he or they would die before he would get out." Ogletree was asked the following questions by the defendant: "I want to ask you whether or not W. T. Giles stated to you on Saturday following the shooting on Tuesday that he was there on the porch when the shooting occurred and saw the hand of the man from the door of the west room, and he never saw the man and never saw the man come in the room?" The state objected because no predicate had been laid. Giles in his previous testimony had stated that he was in the hall and saw only the hand and pistol of the man who did the shooting; that he could not see the man himself on account of the door facing.

At the conclusion of the testimony, the defendant requested a number of written charges, some of which were given, and some of which were refused. Charge B was given as follows "Unless each and every member of the jury is convinced beyond all reasonable doubt of the guilt of the defendant from the evidence in the case, then you should not convict him." At the time he gave this charge, the court said: "That simply means, gentlemen of the jury, that you must all agree upon your verdict." Charge E: "Unless each and every juror is convinced beyond all reasonable doubt from the evidence in the case that the defendant killed Robert L. Hipp by shooting him with a pistol in this county, before the finding of this indictment, and that such killing was willful and deliberate and malicious and premeditated, you cannot find the defendant guilty of murder in the first degree." In giving this charge, the court said: "As I said before, all 12 of you must agree before you can return any verdict. This charge is to be taken and construed with the charge I have already given you, and it simply means that all of you must agree upon the elements of murder in the first degree before you can find the defendant guilty of murder in the first degree." Charge C: "The necessity that will justify the taking of life need not be actual, but the circumstances must be such as to impress the mind of the slayer with a reasonable belief that such necessity is impending." Charge D: "A man is not required to retreat from his own house before he strikes himself." Charge F: "The law regards with great jealousy and vigilance the peace and security of the dwelling house. A trespass upon it is more than a trespass upon property. It is a trespass upon the person." Charge G: "A man's house is his castle, and he may defend it, or himself in it, without retreating." Charge H: "The court charges the jury that, if the killing was the consequence of passion suddenly aroused by sufficient provocation, the jury cannot convict the defendant of murder in the first degree." Charge I: "If the jury believe from the evidence that Dunlap presented his pistol at the defendant in a threatening manner, and the defendant was free from fault in bringing on the difficulty, then the defendant had a right under the law to shoot at Dunlap in self-defense." Charge J: "In weighing the testimony of the witness Dunlap, the jury will consider the fact that he was shot by the defendant at the time of the alleged killing." Charge K: "The right of one in self-defense is not limited to cases of necessity, real or apparent, on account of danger to life or limb, but extends equally to the danger of great bodily harm." Charge...