58 So. 996 | Ala. Ct. App. | 1912
The facts in the present case are as follows: The grand jury of Calhoun county, at the February term, 1911, of the city court of Anniston, jointly indicted John Pearce, Cross Pearce, William Kennedy, Ada Kennedy, John Fowler, and John Eaton, alias John Eden, for murder in’ the first degree. There was, by each of the defendants, a demand for a severance, and the severance prayed for was granted by the court. The defendant, Cross Pearce, was tried by a jury, was convicted of murder in the second degree, was sentenced to the penitentiary for a period of 20 years, and appeals.
The defendant was charged with the murder of Sarge Kennedy, the son of Shelton Kennedy, who was also
The general rules governing the subject of self-defense in cases of homicide are well known, and need not be repeated here. As the defendant, when he shot Sarge Kennedy, shot, not in defense of himself, but in the alleged defense of his father, he thereby assumed, under the law, the same attitude, so far as his right to invoke the doctrine of self-defense is concerned, which his father occupied with reference to the difficulty. Assuming, 'for the present, that all the testimony in the case tends to show that, the defendant was present, aiding, abetting, or encouraging the father, the defendant, so far as his right of self-defense, under the law, is concerned, simply stepped into his father’s shoes when he took part in the difficulty. A son may do, in the necessary defense of his father,, that which he may lawfully do under the same circumstances for himself, but not more. Though a son may kill another in the necessary defense of his father, yet in such a case, on the question of justifiable self-defense, the act of the son must have
The evidence in this case shows that Dr. John Pearce, one of the defendants, is a sawmill man who lives in Calhoun county several miles from Gadsden, which is in Etowah county. He was accustomed to haul the products of his mill by means of wagons from the mill to Gadsden. There was a road which some of the evidence tends to show had been used by the public for many years, probably more than 20 years, and the public, by reason of such user, may have acquired the right to use and travel the said road. This road was about two miles long, and a part of it went through lands which belonged to Shelton Kennedy. It is inferable from the evidence that Dr. Pearce had been accustomed to use this road in hauling his lumber to Gadsden, but about 30 or 40 days before the homicide someone cut trees into the road and placed a wire fence across it at the point where the road crossed the lands of Shelton Kennedy. There is no positive evidence that Shelton Kennedy caused these obstructions, but presumptively he did so. After the obstructions were placed upon the road, Dr. Pearce does not seem to have attempted to use it or to have attempted to remove the obstructions until the morning of the difficulty. On the morning of the difficulty, Dr. Pearce, in company with the parties named as defendants in the above indictment, and with
Some of the testimony oh behalf of the defendant further tended to show that, when Dr. Pearce shot at Shelton Kennedy, Sarge Kennedy began shooting at Dr. Pearce, and that, when this occurred, Cross Pearce began shooting with a shotgun at Sarge Kennedy. There was evidence further tending to show that the shot from Cross Pearce’s gun struck Sarge Kennedy in the back, but. that Sarge Kennedy died of wounds which were inflicted by some person other than Cross Pearce, and that the wounds which were inflicted upon the person of Sarge Kennedy by Cross Pearce during the difficulty did not contribute to his death. .
One of the theories of the State was that all of the defendants named in the above indictment had entered into a conspiracy by force to remove the obstructions which, had been placed in the road, and, if necessary, to take the life of any person who might oppose them in so doing. It appears from the evidence that Dr. Pearce and Shelton Kennedy were not on good terms, and there
For the purpose of explaining the reasons why he went up the road that morning with his wagons, prepared to remove the obstructions from the road, the defendant offered to prove that a short while before the homicide Dr. Pearce had filed a bill in the chancery court of Calhoun county to enjoin Shelton. Kennedy from further obstructing the said road, and that on the day previous to the homicide the sheriff of the county had informed Dr. Pearce that the writ had been served. The defendant offered to introduce the writ, with the sheriff’s endorsement showing the service, but the court refused to allow the writ to be introduced in evidence, and also refused to allow the defendant to show that on the day previous to the homicide Dr. Pearce had been informed by the sheriff that the writ had been served. The writ is in the record, and shows on its face that it had been served upon Shelton Kennedy by a deputy sheriff of Calhoun county. As the State undertook by its evidence to show that the defendants had entered into an unlawful conspiracy to do an act which they did not.have a legal right to do, it seems to us that the above
For the-purpose of explaining his presence there on the occasion named, the defendant, who, it appears, was not over 17 years of age, undertook to prove that he was instructed by his father on that morning to go to the point where the obstructions had been placed and aid in removing such obstructions, and that after that time he might go hunting. There was some evidence tending to show that the defendant’s younger brother was also present at the time of the homicide and that his gun was there, and it seems to us that this evidence was also relevant as tending to explain why the defendant was present and why he had his shotgun with him on that occasion, and as also explaining the presence of the younger brother and the presence of the gun of the younger brother. It certainly had some tendency, if believed, to rebut the idea that the defendant had engaged in a conspiracy, and that he was there armed for the purpose of aiding and abetting the other defendants in carrying out a common design to violate the law. The defendant was a minor, and under his fathers dominion, subject to his lawful orders; and it seems to us that this testimony, which was offered by him, did not amount to a mere declaration in favor of interest, but to positive testimony tending to explain his presence at the time of the difficulty. Whenever a fact is relevant and competent, then, as- a general rule, a trial court
In this case it may be that Dr. Pearce provoked the difficulty. When he threw the axe to William Kennedy, for the purpose of enabling William Kennedy, against the protests of Shelton Kennedy, to cut the wire fence from the road, it may be that he did an act which necessarily tended to provoke the difficulty which ensued. Cross Pearce aided and abetted his father, according to his own testimony, in the homicide, and it may be that under the undisputed evidence in this case he cannot invoke the doctrine of self-defense.—Jordan v. State, 82 Ala. 1, 2 South. 460. If, however, there was no conspiracy, and if Cross Pearce was present at the time of the commission of the homicide for a lawful purpose and went there armed for a lawful purpose, and if Dr. Pearce went there armed for a lawful purpose (the testimony tends to show that his life had been threatened, and the jury might have inferred that he was armed because of that fact alone), even though Dr. Pearce provoked the difficulty, and even though he may, under all the evidence, be precluded from invoking the doctrine of self-defense, it was undoubtedly for the jury, under all the evidence in this case, if they discarded the theory that there was any conspiracy, to say whether Dr. Pearce was guilty of murder, and, if so, in what degree, or of manslaughter in the first degree, and also whether Cross Pearce was guilty of murder, and if so, in what degree, or only of manslaughter in the first degree.
In addition to all this the law lodges in the jury trying a defendant for unlawful homicide the power to say what punishment shall be inflicted upon him, and we presume that jurors in fixing such punishment are governed hy the facts and circumstances of each particular case as. the evidence discloses the circumstances to be. In the present case, although Cross Pearce may have been legally guilty, under all the facts, of unlawful homicide (a quéstion upon which it is not necessary for us to intimate an opinion), nevertheless the question of whether or not he was guilty of murder in one of its degrees or whether he was guilty of manslaughter in the first degree was a question for the jury. The jury convicted him of murder in the second degree, and fixed his punishment at 20 years. If the testimony to which w have above referred, which the court refused to allow to go before the jury, had been admitted, it may be that the jury would have convicted him of murder in the second degree, but the excluded evidence might have affected the jury on the question of punishment and they might have sentenced him to the penitentiary for a shorter period than 20 years, or, within their province, and within their province alone, they might have found the defendant guilty of manslaughter in the first degree and fixed his punishment at what, under all the circumstances, they thought his punishment should be.
For the above reasons, we are of the opinion that the trial court erred in refusing to admit the writ of injunction, in evidence, and that it also erred in refusing to
We have purposely refrained from any such discussion, because, as a general rule, the weight to be given testimony, the inferences to be drawn from it when it is susceptible to more than one rational conclusion, and the credibility of witnesses present questions for the jury and for the jury alone. We have simply undertaken to show that, as we understand this record, certain evidence which the defendant offered to introduce on his trial and which the court refused to allow him to intro
The judgment of the court below is reversed and the cause remanded.
Reversed ánd remanded.