Ferguson v. State

SFIARPE, J.

At the spring term, 1902, of the circuit court, the defendant was, on an indictment charging Mm with the murder of Will Andrews, convicted of manslaughter in the first degree, and on appeal the judgment of conviction was reversed. See Ferguson v. State, 134 Ala. 63. On his last trial, defendant pleaded the result of the first trial as an acquittal of the charge; of murder, and the plea being sustained, he was, on the same indictment, tried for manslaughter and was again convicted of manslaughter in the first degree'.

The evidence showed that Andrews while walking in company with his mother along a road which lay close to defendant’s store and barn, was shot twice from the barnyard by John Ferguson, a. son of defendant. The store was about 150 yards from the barn and had been passed by Andrews and his mother before they reached the barn. Defendant, his son John and others were in the store as Andrews approached it and a bystander, who testified he had heard of a previous difficulty or fight between Andrews and John Ferguson, said to the ' latter in defendant’s presence, “Yonder comes Will Andrews and bis mother now.” John then took a shot gun from the. store and went ahead of Andrews to the barn. After the latter passed defendant locked his store and went towards the barn with a pistol in his hand. According to some testimony he had gone 12 or 15 steps when his son fired the first shed and a few steps further when the second shot was fired. Defendant continued on with pistol in hand and had nearly reached the place wheie Andrews lay dead in the road when he met the latter's mother, who had started back towards the store, crying and upbraiding the Slayer. A witness testified in substance that when defendant so met the mother and about a, minute or two after the killing, he said to her, “Where in the hell are you going?” This statement, if made as the witness testified, was so near- in time and place to the killing as to be of the res gestae of that occurrence and as such it was admissible.

As a circumstance tending to show defendant aided or abetted in the commission of the offense, the State was properly allowed to introduce testimony to effect that three or four days before the killing, defendant discharged loads from his shot gun into the ground and reloaded and placed the gun in his store. ' Under the evidence it was taken from the store and used by John Ferguson in shooting Andrews. To show knowledge of a sinister design on the part of his son and as tending in connection with the other evidence introduced, to prove his own participation in that design, evidence that defendant, when asked what he would do about the difficulty between his son and Andrews, said he was not going to do anything himself, but did not know what John would do about it, was relevant and admissible. For the same purpose the State was entitled to introduce testimony to effect that four or five days before the killing defendant said that if John killed Andrews he, the defendant, had 800 acres of land to spend to get him out of it; and that in speaking in the same conversation of Will Andrews and another spoken of as “old man Andrews,” he said: “It would not he any more harm in killing one of them than in killing a dog.” ‘

In the refusal of requested charges 1, 3, 9, 10, 11, 12, and 14, there was no- error. On the former appeal it was held that evidence substantially the same as that adduced on the last trial was sufficient to take-to the jury the question of whether tire shooting was done in pursuance of a conspiracy formed between defendant and John Ferguson. The same conclusion attaches to the evidence in the present record and is opposed to what is asserted in charge 3. It is not true as is asserted in charges 9, 12 and 14, that because defendant had on the first trial been guilty of manslaughter he ought not to have been again convicted of that offense on evidence that he aided or abetted in the homicide by conspiring with his son for its'commission. Our statute (Code, §4308) abolishes the common law distinction between accessories before the fact and the principals in felony and makes guilty as principals “all persons concerned in the commission of a felony whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present.” In Barnett v. People, 54 Ill. 325, the court declared a principle properly applicable here and which is stated in the head notes of that case as follows: “Where a party has been tried on an indictment for murder and convicted of manslaughter, that is an acquittal on the charge of murder; and if, in such case, a new trial is granted, the accused cannot be put upon his trial again for murder, but only for manslaughter. And upon the second trial in such case, the court may properly instruct the jury, for the prosecution that if they believe the accused guilty of murder, that, of itself, will not justifj1' them in acquitting him of manslaughter, inasmuch as the laiv only regards him as guilty of manslaughter.” See also Commonwealth v. McPike, 3 Cush. 181.

Charge 11 by proposing to. instruct as to. the effect of only part of the evidence introduced to show a conspiracy would have tended to obscure and to divert consideration from other parts of the evidence bearing on the same subject, and was faulty in this respect if not in any other respects. — Grant v. State, 97 Ala. 35.

Charge 10 ivas calculated to mislead the jury to believe that either a reasonable doubt that defendant connived to bring about the homicide or a like doubt of bis having aided therein was sufficient to prevent his conviction, whereas his participation in either of those methods would have authorized his conviction. .

We think defendant’s requested charge 13 should have been given. It was applicable to the evidence and was hypothesized upon what was in effect an absence of complicity on defendant’s part in the act which caused the homicide', such as.if believed by the jury would have entitled him to an acquittal. For the single error committed in the refusal of the last mentioned charge, the judgment must be reversed and the cause remanded.

lieversed and remanded.