Wilson v. State

• Decision Date: 17 May 1904
• Citation: 37 So. 93,140 Ala. 43
• Parties: WILSON v. STATE.
• Court: Alabama Supreme Court

37 So. 93

140 Ala. 43

WILSON v. STATE.

Supreme Court of Alabama

May 17, 1904

Appeal from Circuit Court, Autauga County; N. D. Denson, Judge.

Walter Wilson was convicted of murder in the second degree, and appeals. Affirmed.

W. M Parrish, a witness for the state, was asked the following question: "Did you hear Wilson make any threats against the deceased before he was shot?" The defendant objected to this question on the ground that it called for the opinion of the witness. The court overruled this objection, and the defendant excepted. The witness answered that a short time before the shooting he heard the defendant say of the deceased, "Damn him, I will get him yet." This witness, on cross-examination, was asked the following question: "On the same day, and immediately preceding the shooting, did you not hear Webb make threats against Wilson?" The state objected to this question, the court sustained the objection, and the defendant duly excepted. The defendant asked the witness Charles Carter this question "Did Webb make any statements about the difficulty as you were going with him?" The solicitor objected to this question. The court sustained the objection, and the defendant duly excepted. Mr. Webb, the father of the deceased, testified that after Webb was shot he was brought to an infirmary in Montgomery, where he was operated upon and that he died in Montgomery. Upon this witness being asked if the deceased said anything about living or dying, the defendant objected to the question upon the ground that the corpus delicti had not been proven. The court overruled this objection, and the defendant duly excepted. The witness Webb further testified that he knew one O. H. Franklin, and had received several letters from him, in which he stated that he was going to Tennessee, and that he expected to come to the trial of the defendant; that Franklin's home was in Kansas City, Mo.; that he was a traveling man. The state then introduced G. A. McWilliams, who testified that he was sheriff of Autauga county; that a subp na had been issued for said O. H. Franklin as a witness in this case; that after the delivery of said subp na to said witness he had searched Autauga county for said Franklin, but was unable to find him that he inquired of every one whom he could about Franklin that he knew he had left Autauga county, and had been gone for 12 months; that he had not seen him since the last term of the court. The state then introduced one Chapman, who testified that he knew Franklin, and that he was present at the preliminary trial, but that he had not seen him since July, 1902; that at the preliminary trial the witness Chapman wrote down the testimony that was given by said O. H. Franklin, and identified the testimony which he had so written; and thereupon the state offered to introduce in evidence the written testimony of O. H. Franklin which was given upon the preliminary trial, and which was identified by the witness Chapman. The defendant objected to the introduction of this evidence upon the ground that the proper predicate had not been shown to render it admissible. The court overruled the objection, and the defendant duly excepted.

The court, at the request of the defendant, instructed the jury that: "If the killing was without passion, suddenly aroused by the actions of the deceased, and not done with malice, they cannot find the defendant guilty of murder in either degree." After giving this charge at the defendant's request, the court, at the request of the solicitor, gave to the jury the following written charge "The court charges the jury that in a case of homicide no mere words used by the deceased towards the defendant, however abusing or insulting, will reduce the degree of homicide to less than murder." The defendant duly excepted to the giving of this charge, at the request of the solicitor, and also separately excepted to the court's refusal to give each of the following written charges, requested by him: "(2) The court charges the jury that if the killing was the result of action on the part of Webb which aroused the defendant to sudden action, or a reasonable apprehension of great bodily harm, or if they have a reasonable doubt from all the evidence as to whether the killing was a result of passion suddenly aroused by action on the part of the deceased, they cannot find the defendant guilty of murder in either the first or second degree." "(4) The court charges the jury that if they find from the evidence that immediately before the defendant fired the shot that caused the death of Webb, Webb acted in such a manner as to create in the mind of Wilson an honest belief that the defendant was in danger of his life or great bodily harm at the hands of Webb, and further find from the evidence that Wilson was free from fault in bringing on the difficulty which resulted in the death of Webb, and there was no reasonable way of escape on the part of Wilson, they must find the defendant not guilty, notwithstanding that Webb was in fact unarmed at the time he was shot." "(7) The court charges the jury that if from the evidence they believe that the deceased was a quick, impulsive man, his (the deceased's) acts would afford much stronger evidence that the life of the defendant was in peril...