49 So. 336 | Ala. | 1909
The annals of this court will hardly reveal a more malicious, willful, deliberate, and premeditated murder than is here shown by this record. Defendant and deceased were members of the hauling crew of workmen engaged on the construction work of the A., B. & A. Railroad Company. ■ The crew had been to
There was, however, some evidence tending to show the previous difficulty. It was a statement made by deceased to Eager while defendant was gone after the gun, but no one knew he had gone for a gun. Defendant left, the party, and went a mile or two and borrowed a double-barreled shotgun under the pretext that he wanted to shoot some birds, returned to the road along which the ci’ew were traveling, waited till they arrived, stood upon the side of the road on a bank in a pine thicket, and, when deceased drove up in the wagon with two other men, defendant pointed the gun at deceased, threatened him, and said to him: “.You called me a son of a bitch, did you?” Deceased then threw up his hand, and said: “Charlie, I did’t mean it.” Patterson, who was in the wagon with deceased, hollowed to defendant not to shoot till he could get out of the wagon. Defendant then lowered the gun till Patterson got out of the wagon, when he fired, shooting deceased in the face; the shot taking off a part of his jawbone. When the gun fired, the mules pulling the wagon ran about 50 yards to the next wagon in front; defendant followed in hot. chase. Deceased had then fallen upon the double-tree of the wagon, with his head down. Defendant walked or ran to within a few feet of deceased as he was lying upon the double-tree, face down, in the act of falling, and shot him through the back. Defendant was so close to de
Many of the questions raised upon this appeal are dependent and founded upon the doctrine of self-defense. It is both unnecessary and impracticable to treat and consider each of the same separately, as we will hereafter show.
No question of law has been of tener- or more fully treated by this court than that of the doctrine of self-defense. The law of this state, as to this doctrine, may be said to be well (and we believe, correctly) settled; and we will state only so much of it as is necessary to dispose of the questions material on this appeal.
A defendant in a homicide case cannot set up or plead self-defense if he was the aggressor and provoked or brought on the difficulty which resulted in the homicide
The law of homicide in Alabama does hot consider the doctrine of retreat as a cowardly doctrine. It provides no balm for wounded pride incident to declining a combat, or to being’called a. coward. It declares that one man must' flee rather than that another should die.— Stoball v. State, 116 Ala. 454, 23 South. 162; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85;
It here conclusively appears that, after the former difficulty, defendant went off, armed himself, laid in wait for or secured the advantage of his adversary with a shotgun ready for execution, accosted his adversary, not in the spirit or language of compromise or peace, and as his adversary (on one theory) tried to apologize and to flee, or (upon defendant’s theory) attempted to go towards defendant as if to assault him, he thereupon shot his adversary down, and, after seeing him prostrate and in jeopordy of being crushed under the wagon wheels, followed him up '; and, though he knew his adversary could not harm him, again shot him — shot him in the
It is insisted in this case that the trial court usurped the functions of the jury in passing upon the question of “cooling time” between the first and the fatal difficulty between defendant and the deceased. It is a sufficient answer to this to say that the question of “cooling time” is usually, if not always, a question for the court under, the facts and circumstances of the case, and not one for the jury. — 1 Mayfield’s Dig. p. 680, which collects authorities; 2 Bish. Cr. Law, § 713. There is a declaration in Hooks’ Case, 99 Ala. 168, 13 South. 767, to the effect that it is a question for the jury, but it has never been followed. The charge under discussion in
The trial court seems to have been careful to charge the jury that they were the exclusive judges of the facts, and that they were to determine the case by applying to the facts, as they found them, the law as announced by the court, and to say whether or not the evidence established the guilt of the accused, and that, if they had a reasonable doubt as to his guilt, they must acquit him, We cannot agree with counsel for accused that the court usurped any of the powers, duties, or rights of the jury or of counsel in the trial. The trial, as it appears from this record, was conducted upon the proper theory and according to the law governing homicide trials; that is, upon the theory that it was the province and duty of the court- to expound the law,, and that of the jury to apply the law as thus declared to the facts as found by them, and to then render such verdict as they found the
There was likewise no error in the trial court’s rulings as to the evidence or otherwise. The trial judgment and the sentence, as shown by this record, are free from error, and the judgment of the court is affirmed.
Affirmed.