Beasley v. State, 61 So. 259

Beasley v. State

61 So. 259 | Ala. | 1913

Lead Opinion

ANDERSON, J.

The rule is Avell settled that, when there is a conflict in the evidence, in homicide .cases, as to who was the aggressor, the accused may strengthen his defense by showing ill will, threats .by the deceased, or a. previous. difficulty. It is also a Avell-established doctrine that. when the deceased has made threats against the defendant, and which have been co-mmuni: cated to him, he is not thereby authorized to commence an attack or to act upon said communicated threats until the deceased has committed some overt act or made some hostile demonstration; but in such case the laAv allows the threatened party to act with greater dispatch and upon a perhaps slighter overt act than is required on the part of a defendant who was not threatened by the deceased, or between whom and the accused there Avas no bad blood or ill will. The mere fear of an attack will not justify action on the part of the defendant; and he cannot avail himself of communicated threats until he first shoAvs some overt act or hostile demonstration on the part of the deceased which would be calculated to reasonably impress upon him the bona fide belief that he Avas in imminent peril. This does not mean that the supposed facts generating the belief must be real; for they may be appearances only, and yet justify as prompt action as if they were real. — Jackson v. State, 78 Ala. 171; Story v. State, 71 Ala. 330.

But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor Avhen the difficulty is brought on or sought by the accused. — De Arman v. State, 71 Ala. 351. “Whether * * * threats, taken in connection with the circumstances of the affray leading to and accompanying the *33killing, are sufficient to justify the act of homicide, is a question of fact for the jury; and it is not permissible for the court to determine it as matter of law. They cannot be excluded if there is the slightest evidence tending to prove a hostile demonstration, which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or of other grievous bodily harm.” — Turner v. State, 160 Ala. 40, 49 South. 828; Roberts v. State, 68 Ala. 156. So the question is: Did the defendant’s evidence tend to establish such a hostile demonstration as could be reasonably interpreted as placing the defendant, at the time he shot, in apparent peril?

It may be true that the defendant’s testimony was opposed by the great preponderance of the evidence, and that his version of the action of the deceased may have been inconsistent with the facts attending the trip from Montgomery to the place of the killing, both being-in the same wagon, and no fuss or cross words passed between them, yet the undisputed evidence showed that deceased had a rifle across his lap, the defendant said he heard him cock it, and saw him attempt to change its position, and at the same time starting to turn upon him; and we think that the trial court erred in excluding the threats, as well as evidence of a previous difficulty, as it was a question for the jury as to whether or not this action was sufficient to reasonably indicate immediate danger, and whether or not the defendant could safely retreat. We do not think that the evidence had to show that the deceased had turned entirely around, and had covered the defendant with the rifle, or had shot him, before the conduct of the deceased could be considered an overt act or' hostile demonstration; for, if such was the case, the defendant would have to wait until he was shot or placed at a great dis*34advantage before attempting to protect himself against ah assailant whq had not only threatened his life, but between whom and the defendant there existed bad blood. More prompt and decisive means of defense are justified, when the assailant is of known violent and bloodthirsty nature, or when he has threatened the life of the accused, and said threats have been communicated. — De Arman’s Case, supra. In determining whether or not the defendant has established a predicate for the admission of threats, whether the evidence is consistent or not, if any of it tends to establish a hostile demonstration such as would reasonably place him in imminent peril, he is entitled to the admission of said threats, unless, of course, the other elements of self-defense are lacking.

Charge 1, requested by the defendant, if not otherwise bad, pretermits a reasonable or bona fide belief by the defendant that his life was in danger.

Charge 2, refused the defendant, if not otherwise bad, pretermits the defendant’s duty to retreat. It was a question for the jury, under the circumstances, to de-. termine whether or not the defendant could have retreated without increasing his peril. — Abernathy v. State, 129 Ala. 85, 29 South. 844; Suell v. Derricott, 161 Ala. 268, 49 South. 895, 23 L. R. A. (N. S.) 996, 18 Ann. Cas. 636.

For the errors above designated, the judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan, J., concur in the opinion.

Concurrence Opinion

Mayfield, Sayre, Somerville, and de Graffenried, JJ.,

concur in the conclusion and the opinion, except as to charge 2. They think that this charge should have *35been given, as there was evidence from which the jury could infer that the defendant was in peril; and, if defendant’s version that the deceased was about to make a murderous attack upon him was true, he was under no duty to retreat. — Cook v. State, 5 Ala. App. 11, 59 South. 519; Storey v. State, 71 Ala. 337.