Powell v. State

52 Ala. 1

• Court: Supreme Court of Alabama
• Decided: January 15, 1875
• Status: Published

Opinion

BRICKELL, C. J.

The threats to take the life of the accused, made by the deceased, were made on the day of the homicide, and communicated to the accused but a few hours before it occurred. There was evidence tending to show the deceased had gone out of his way, to the residence of the accused, in the night-time, called him out, and declared, one or the other should die. The accused inquired if he meant what he said, and his reply being affirmative, while his hand was in his pocket, the accused stepped into his house, got his gun, and fired upon deceased, killing him instantly. The threats were excluded from the, jury, as evidence. They should have been admitted. The case does not materially differ from that of Dupree v. State (33 Ala. 380), in which the court ruled, that threats made by the deceased a short time before the commission of the homicide, indicating an angry and revengeful spirit towards the prisoner and a determination to do violence towards his person, which were communicated to the prisoner before the homicide, are admissible as evidence. That decision is supported by the weight of authority, and compels a reversal of this cause.

The judgment is reversed and the cause remanded. The prisoner must remain in custody until discharged by due course of law.