Allen v. StateAllen v. State
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- Denson
— This is thе second appeal in this case. However, none of the questions now presented were presented by the first appeal. On the first trial the defendant wаs convicted of murder in the second degree, the judgment was reversed, and the cause remanded.—Allen’s Case, 146 Ala. 61, 41 South. 624. On the second trial the defendant pleaded former acquittal of murder in the first degree, the plea was sustained by the circuit court, and the defendant was put on trial before the jury for no higher crime than murder in the second degree. Therefore charges 5 and I, which presented for consideration or involved the crime of murder in the first degree, were inappropriate to and outside of the issues in the case and Avere properly refused.
*591The secоnd instruction refnsed to tbe defendant is as follows: “While a deliberate’ killing with a deadly weapon is presumed to be malicious; but, if the facts and circumstances attеnding the killing are in evidence, the presumption must be drawn from the whole evidencе, and not from the nature of the weapon only.” The appellant’ contends that this instruction should be held good, and it refusal error, on the authority of Eiland’s Case, 52 Ala. 333. Aside from the facts that the instruction is awkwardly constructed, we are of the opinion that it invades the province of the jury. Furthermore, in cases like this, the intentional use of a dеadly weapon by the slayer may afford sufficient ground upon which to rest the prеsumption of malice, unless the evidence which proves the killing shows the excusе or extenuation.—Miller’s Case, 107 Ala. 41, 19 South. 37; Thayer’s Case, 138 Ala. 39, 35 South. 406; Kennedy’s Case, 140 Ala. 1, 37 South. 90; Wilson’s Case, 140 Ala. 43, 37 South. 93. The state’s evidence tended to show a homicide by the intentional and dеliberate use of a deadly weapon and without the semblhnce of justificatiоn or extenuation. The only evidence tending to show excuse or palliation was offered by the defense, and its worthiness of belief by the jury should have been hypothesized in the instruction.
Charge G, refused to the defendant, is argumentative. Besides, the usе of the words, “the mere fact that defendant killed Jim Allen,” would seem to imply that the evidence shows only the killing, without any circumstances of aggravation or otherwisе. The charge was properly refused.—Miller’s Case, 107 Ala. 41, 19 South. 37.
Whether the piece of timber, which the evidence for the defendant tended to show the deceased had in his hands, was a dеadly weapon, was, under the evidence in the case, a question, not of lаw, but of fact, for deter-, ruination by the jury under appropriate instructions by the cоurt. In this view Charge E was properly refused to defendant.—Tribble’s Case, 143 Ala. 23, 40 South. 938; Tesney’s Case, 77 Ala. 39; Sylvester’s Case, 72 Ala. 201; Vol. 26, Cent. Dig. “Homicide,” § 562.
*592Charge O was properly refused.—Avery’s Case, 124 Ala. 20, 27 South. 505.
Charge J was calculated to leаd the jury to. believe that the evidence showed only a mere reckless taking оf human life, and .was properly refused. Besides, the charge is argumentative.
Charge P was properly refused.—Thayer’s Case, 138 Ala. 39, 35 South. 406; Lewis’ Case, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75.
Charge M fails to set out the elements of self-defense, and was properly refused.—Allen’s Case, 146 Ala. 61, 41 South. 624.
The burden of proof does not rest on the state to prove that a defendant is at fаult in bringing on a difficulty, unless it appears from the evidence that the defendant is in imminent рeril of losing his life or of grievous bodily harm; and charge F, for failing to hypothesize suсh imminent peril, was properly refused.— Roden’s dase, 97 Ala. 54, 12 South. 419; Mitchell’s Case, 129 Ala. 23, 30 South. 348.
Under the evidence there -was nothing to authorizе a verdict for manslaughter in the second degree, and the court did not err in saying to the jury that that the degree of homicide Avas not involved in the case. That the lаAv presumes that a man intends to do Arhat he does- is a legal truism, and the oral chаrge announcing this proposition is free from error.
The court, in the oral charge, said: “The burden is on the defendant to show that he was in great danger of losing Ms life or suffering great bodily harm.” This charge is incomplete, -and exacts too high a- degrеe of proof. It is not indispensable that the danger of life or limb should be real; but, if the appearances are such as would lead the mine! of a reasоnably prudent man to the honest belief that such danger exists’ that is sufficient in respeсt to the doctrine of imminent danger. We are constrained to hold that- the chаrge- .cpntains error prejudicial to the defendant, which‘must work a reversal of the judgment and sentence. - :-
Reversed’ and remanded.
Tyson, O. J., and Haealson and Simpson, JJ., concur.