Winter v. State

• Decision Date: 30 June 1899
• Citation: 123 Ala. 1,26 So. 949
• Parties: WINTER v. STATE. [1]
• Court: Alabama Supreme Court

26 So. 949

123 Ala. 1

WINTER v. STATE. ^[1]

Supreme Court of Alabama

June 30, 1899

Appeal from law and equity court, Tuscaloosa county; J. J. Mayfield Judge.

Burie Winter was convicted of manslaughter, and he appeals. Affirmed.

The appellant, Burie Winter, was tried under an indictment charging him with murder in the second degree, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for five years. On the case being called for trial, and after the state had announced "Ready," the defendant stated that he was not ready to go to trial and moved the court for a continuance on the ground of the absence of one Pink Williamson, who was a witness for the defendant, and who resided in the county of Tuscaloosa. It was shown that said Pink Williamson had been duly subp naed as a witness, and was absent without the procurement or consent of the defendant. In response to this motion and application for a continuance, the court stated that he would not allow a continuance, but would give the defendant the benefit of the showing as to what the testimony of the witness would be. The defendant objected to being put upon a showing, and made a demand for compulsory process of attachment against the witness, and moved the court to postpone the trial until the attachment should be returned. In support of this motion the defendant made a written statement of the evidence to which he expected said witness to testify, and it was further shown that the defendant lived in Tuscaloosa county, a distance of about 18 miles from the court house; that he had been duly served with a subp na, and that no certificate from a physician of his sickness for his absence had been given, except the statement of one of the other witnesses in response to a general inquiry by the court that the witness Williamson was not present because he had no way of coming to court. Thereupon the court stated that he would order the attachment to be issued, but that he would not delay the trial to await its return, and "that, if the state would admit that the witness, if present, would testify as set forth in the written showing made by the defendant, and defendant himself could go to trial with the understanding that, if the witness was brought in before the conclusion of the testimony, he could be put upon the stand and that, if he was not brought in before the conclusion of the testimony, the defendant can use the showing made by the defendant." The state agreed to admit the showing, and thereupon the court ordered the writ of attachment for the witness, and directed the trial to proceed. To this action of the court the defendant objected on the ground that he was denied by said action of the court the benefit of compulsory process to procure the attendance of his witness, as guarantied by the constitution, and he duly reserved an exception to such action of the court.

The evidence for the state tended to show: That at the time of the difficulty Millard Gregg, the deceased, and the defendant were under the influence of liquor. That the defendant and his brother were quarreling, and that Gregg, the deceased walked in between them, and said to the defendant, "If you want to fight, fight a man." That thereupon the defendant and said Gregg commenced to fight each other, each of them drawing their knives from their pockets. That the defendant put up his knife, and that, as Gregg was advancing upon him with the knife drawn, he struck Gregg in the forehead with his fist. That, as he did so, the defendant picked up a stick, and struck Gregg over the head. Thereupon the defendant and Gregg separated, and each cut a stick, and upon coming together again, the defendant threw his stick at Gregg, but missed him. That Gregg struck at the defendant with his stick, having his knife open in the other hand, and thereupon the defendant grabbed the stick from Gregg's hands, and struck Gregg a blow over the head with said stick. This stick which the defendant took from Gregg, and with which he struck him over the head, was a green oaken stick, which was introduced in evidence, and is described in the opinion. It was also shown that at the time the defendant struck Gregg over the head with the stick which he had snatched from him Gregg was advancing upon him with his knife open, striking at him. This difficulty occurred in August, and the weather was shown to have been very hot. The evidence for the state further tended to show that Gregg died from the effects of the blow on his head which was inflicted by the defendant; one Dr. Perry, a physician who attended the deceased, testifying on the trial that such blow was sufficient to produce death, and that the deceased's death was the result of such blow.

The evidence for the defendant tended to show that Gregg's death was caused by his becoming overheated while he was under the influence of liquor; one or two of the witnesses testifying that Dr. Perry had said that alcohol and overheat had caused the death of said Gregg. Upon the cross-examination of one Nathan Wilson as a witness for the defendant he was asked by the solicitor what was the age of Gregg, the deceased. The defendant objected to this question upon the ground that it called for irrelevant and immaterial evidence. The court overruled the objection, and to this ruling the defendant duly excepted. The witness answered that he did not know the exact age of Gregg, and, upon the solicitor asking him to give his best judgment of his age,-as to how old he was,-the defendant objected to this question upon the ground that the witness had said that he did not know the age of Gregg, and that his opinion or judgment was incompetent evidence. The court overruled this objection, and to this ruling the defendant duly excepted. The witness answered that, in his best judgment, Gregg was a man of about 45 years of age at the time of his death. He further testified that he had known him for more than 20 years. The defendant introduced several witnesses who testified that they resided in the same neighborhood with the deceased for a number of years, and knew his reputation in the neighborhood in which he lived, and that his general reputation in that neighborhood was that of "a turbulent and dangerous man, who would fight with weapons, and take an unfair advantage of his adversary."

The court gave to the jury its general charge in writing. The defendant separately excepted to the following portions of the court's general charge, which are numbered to correspond with the numbers on the margin of the transcript (1) "Malice is an essential element of murder, but to constitute this malice it is not necessary that there should be an ill will towards another, or the deceased, but it may be in a condition of the mind which shows the heart to be regardless of duty, and fatally bent on mischief towards another person." (2) "Malice may be presumed when life is taken with a deadly weapon, unless the proof or the circumstances of the killing rebuts the idea of malice." (3) "Where a killing is effected by unlawful means, productive of corporal punishment, and the natural consequence of which is to produce death, it may be murder or manslaughter, though there was no specific intention to kill,-such as where one in cold blood unlawfully and deliberately beat another so that he dies, it might be murder, though he did not intend to kill, if the instrument or manner of beating be apt to kill, or the natural consequence of which was to produce death." (4) "Killing by cruel treatment might be murder, though the murderer might have the authority to correct in a reasonable and proper manner,-as a father his child, or a master his servant." (5) "As was said by our supreme court: A mere blow with the fist may produce death, but very rarely, and would scarcely fix the intent of such consequence. It may, however, be given with such violence and under such circumstances that the necessary intent may be inferred." (6) "If a man gives another a stroke or wound which it may be is not of itself mortal or fatal, but might, with good treatment, be cured, yet, if death was accelerated by the violence of the defendant, he may be guilty." (7) "If the jury should find from the evidence in this case that the deceased died of the effects of alcoholism, extreme heat, or other causes than the alleged violence of the defendant as I have defined it to you, he cannot be convicted of murder or manslaughter, but might be convicted of an assault with intent to murder." (8) "In trials of homicide, in all doubtful questions as to who was the aggressor,...