Black v. State

59 So. 692 | Ala. Ct. App. | 1912

PELHAM, J. —

The defendant was indicted, and tried for murder in the first degree and convicted of manslaughter.

So far as necessary to a proper understanding of the trial court’s rulings and the opinion in the case, the following summary of the substance of the evidence will be sufficient: Coy Hardy, a young son of the deceased, was in charge of and in his father’s wagon, which was standing on one of the streets in the town of Athens, near the curbing to the pavement, in front of a store, when the defendant drove up to the wagon, and the mule hitched to his buggy commenced biting the end of a plank used for a seat of the deceased’s wagon. An altercation arose between young Hardy and the defendant in consequence of the mule’s biting the seat plank, in Avhich more or less bad language Avas used by both parties. The deceased was not present at this time, but when he subsequently came to the Avagon the boy informed his father of Avhat had taken place, and stated that the defendant had cursed him; whereupon deceased and the defendant got into a dispute over the matter. The defendant then drove across the square and hitched his mule to the courthouse fence, and, after going around to several people endeavoring to procure a pistol, secured one, after which he went in the direction of the deceased, who was standing near the back end of his wagon that was located in about the same place it had been since the first dispute arose, and, after the defendant passed by deceased, and within a few feet of him, the defendant turned and shot the deceased.

It was the contention on the part of the state, and the tendencies of the state’s evidence went to prove, that no threats were made against the defendant by the deceased or his son when the altercation first came up, and before the defendant drove off, or at any other time, and that the defendant armed himself for aggressive purposes, and that when he passed by the deceased just before the shooting occurred the deceased did not say or do anything to cause the defendant to turn and shoot him, and that the deceased, at the time he was shot, was standing still, unarmed, and making no demonstration or threat against the defendant. The defendant, on the other hand, contended, and there was evidence tending to prove his contention, that during the altercation between the defendant and the deceased, before the defendant drove off and hitched his mule to the courthouse fence, the deceased threatened the life of the defendant; that deceased followed the defendant’s buggy when he drove off, and that after defendant left his buggy with the mule hitched to it the deceased went over to it and got into it, and afterwards went around the streets in the vicinity of the courthouse square exhibiting a long knife of the dirk kind, threatening to take the life of defendant; that defendant, because of his life having-been threatened, secured a pistol for self-protection, and at the time he went in the direction of and passed dceased he was going to a store to get a package of goods to take home that he had previously purchased; that just as the defendant had passed the deceased, without saying or doing anything, the deceased called to and stopped the defendant, and, after a few words had passed between them, that the deceased threatened the defendant’s life, and at the same time, and while within a few feet of him, advanced upon the defendant with his hand raised and armed with a dirk knife, whereupon the defendant shot the deceased. There was evidence, then, tending to show that the defendant acted in self-defense.

The refused charges take up more than 10 pages of the transcript; and when we take into consideration the practice as it exists under our system, where the charges are carefully prepared at the leisure of learned counsel, or, as is more often the case, copied from the mass of charges that have been passed upon in this class of cases, and presented to the judge, at a time when he has no opportunity to give them careful analysis, it is not unreasonable to suppose, or entirely beyond expectation to find, that out of such a large number refused errors will be made.

The first refused charge set out in the record, and numbered 4, is substantially the same charge that was approved by the Supreme Court in the cases of Bluitt v. State, 161 Ala. 14, 49 South. 854, and Bluitt v. State, 151 Ala. 51, 44 South. 84; and, while portions of this charge are substantially covered by the given charges, parts of it are not so covered, notably the familiar principle that the defendant has the right to act on the appearance of things at the time, taken in the light of any threats the evidence proves the deceased to have made against the defendant.

Refused charge 10 is the same charge that was passed upon in the case of Twitty v. State, 168 Ala. 59, 53 South. 308, as a charge that should have been given. It is a general proposition of law that was applicable to this case, and should have been given.

Charge No. 32 is also copied from Twitty’s Case, supra, and meets and corrects the fault pointed out in the charge as it appears in that case.

The principle of law contained in refused charge No. 34, grounded upon the opinion of the court in the case of Montgomery v. State, 160 Ala. 7, 49 South. 902, is correctly stated; but the charge as written is argumentative and practically covered by given charge B.

What we have said covers the principal propositions involved in the charges, and should be a sufficient guide to the court, on another trial, in the matter of the refused charges, without the necessity of taking them all up in detail and entering into a lengthy discussion of principles of law that have been treated so often as to render repetition of no practical purpose.

The rulings of the court on the evidence Avere free from prejudicial error. It Avas shown, without conflict or objection, that the deceased had been drinking on the day of the difficulty; and, if the court was in error in sustaining objections seeking to elicit this information from the sons of the deceased, it was without injury. The questions asked the Avitnesses Johnson and Legg called for self-serving declarations, and objections were properly sustained to the questions.

If the purpose of showing that the deceased Avas in the habit of taking morphine Avas to affect his character, the evidence Avas not admissible; for it is not permissible to shoAV a particular habit or particular acts of character for that purpose. If the object was to shoAV the condition of the mind of the deceased at the time of the difficulty, then the proof - must be limited to a time that would show a connection Avith the time of the difficulty and shed light on the mental condition of the deceased at that time.

For the errors pointed out, the case must be reversed-

Reversed and remanded.