59 So. 604 | Ala. | 1912
Lead Opinion
This is the second appeal in this case, and the evidence as to what actually happened at the time of' the killing is practically the same as upon the former trial.
The state’s evidence shows that the deceased was in the defendant’s poolroom playing pool or billiards, and had a cue in his hand, also a ball, which he had picked up after it bounced off the table; that the defendant, without saying a word, shot him; and that the deceased at the time was making no effort whatsoever to strike or injure the defendant. If this theory was true, the defendant was guilty of murder.
The defendant’s evidence, like the state’s, shows that there was no fuss, no word was spoken, and that the defendant did nothing, prior to the shooting, that could possibly provoke the deceased, except to enter his own place of business. The defendant’s evidence, however, unlike that of the state on this point, showed that, while the defendant was standing in his poolroom, the deceased drew a billiard ball on him, and held it in a throwing position when he shot him. If, therefore, the jury entertained a reasonable doubt as to whether or not the defendant acted upon the well-grounded and reasonable belief that it was necessary to shoot to save himself from great bodily harm, or from death, or that he shot before such an impending necessity arose, then
Charge 3, requested by the defendant, should have been given. It has been repeatedly approved by this court.- — Bailey v. State, 168 Ala. 4, 53 South. 296, 390; Neilson v. State, 40 South. 221; Bryant v. State, 116 Ala. 445, 23 South. 40.
Charge 18, refused the defendant, should have been-given. This charge, with the elements of freedom from fault and retreat embraced, was approved in the case of Bluett v. State, 151 Ala. 50, 44 South. 84. As heretofore stated, it did not have to hypothesize freedom from fault or retreat. It may be that the charge says “many threats,” when it was intended as “any threats”; but this did not justify its refusal, or render it abstract or an invasion of the province of the jury, as there was evidence, undisputed, that the deceased made many threats against the defendant.
Charge 11, refused the defendant, pretermits an honest, reasonable, or bona fide belief by the defendant that he was' in danger. The defendant may have thought that Snider was going to throw the ball, yet he may not have had the honest, reasonable, or bona fide belief that he was in danger of losing his life, or of sustaining serious bodily harm.
The other charges refused the defendant were either bad, abstract, or else duplicated by given charges. Nor was there reversible error to so much of the oral charge as was excepted to by the defendant.
There are many objections to the evidence; but we do not find that the trial court committed reversible error in any of the rulings upon the same. Many of the objections related to an attempt to enter into the details of a former difficulty between the parties, and to the age and condition of defendant’s family and the
The judgment of the city court is reversed, and the-cause is remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting.) — The defendant (appellant) has been twice adjudged guilty of the killing of Snider, without legal cause or excuse. That he shot Snider to death is admitted. The sole reliance of defendant for his exoneration was and is self-defense.. The first judgment of conviction ivas reversed by this, court, sitting in division, because of the refusal to defendant of special charges 4 and 7. — 172 Ala. 368, 55-South. 801. On the retrial to which the cause ivas remanded, the court gave charge 4, but refused'charge 7, The judgment of conviction is uoav again reversed because of the refusal of charge 7 (numbered 16 on this-last trial), as Avell as for the refusal to defendant of special charges 2, 3, 14, and 18, notwithstanding the-trial court gave, at defendant’s request, 41 special charges covering the substantive laAV of the case, as-shown by this transcript. The case was tried Avith evident caution and care, that the defendant might certainly have, what was his due, a full, fair, and impartial, trial.
The finding of error in the refusal of charges 14 and 16 is predicated upon the assumption, not justified by-
“There are three essential elements of self-defense and they are, first, defendant must be free from all fault in provoking or blunging on the difficulty. He must not say or do anything to provoke or bring on the difficulty, must not be unmindful of the consequences in this respect of any wrongful word or act. * * * McBryde’s Case, 156 Ala. 47, 55, 47 South. 302, 304, among others.
“One assaulted in his house need not flee therefrom. But his house is his castle only for the purpose of defense. It cannot be turned into an arsenal for the purposes .of offensive effort against the lives of others. It is a shelter, not a sally port. A man may stand his ground there, and kill all comers who are, without fault on his part, about to take his life, or to do him great ¡bodily harm.” (Italics supplied.) — Watkins v. State, 89 Ala. 88, 8 South. 134.
“One who is the aggressor, or Avho is at fault in bringing on a difficulty Avith another, in his own house, cannot slay his adversary and claim thereafter, in self-
The fault with special charges 14 and 16, refused by the court, is that they improperly omit from their respective hypotheses -the condition that defendant ivas free from fault in provoking or bringing on the difficulty. Authority for this omission is thought to exist in Harris’ Case, 96 Ala. 24, 11 South. 255. If the evidence here had been of like effect to that shown in the Harris Case, the conclusion in this regard could be rested on that authority. There the defendant was assailed, at midnight, in his domicile. No ill will or hostile purposes had existed, with either Harris or the deceased, toward the other. The deceased’s purpose was to find a Avoman, who he thought Avas in the house. He Avas shown, conclusively, to have been the aggressor to an extreme degree.
In the case at bar, the defendant and the deceased had made grave threats against each other. It Avas shoAvn that a short time before the tragedy defendant had declared his purpose to shoot Snider; and the inquiries and statements made by him on the day of the shooting clearly indicate that he Avas searching for Snider. If this phase of the testimony Avas credited, as, indeed, it must have been by the two juries finding defendant guilty, it is rationally impossible to dissassociate this thus accepted malevolent condition of defendant’s mind from the circumstances attending the soon occurring shooting of Snider by him. The fact that Snider was in defendant’s poolroom when defendant entered, and in which he Avas when defendant shot him, cannot neutralize the obvious effect of his threats against Snider, his expressed deadly purpose toward him, if that phase of the testimony was credited by the
The castle doctrine comprehends only the relief from duty to retreat. To exaggerate its' effect to the extent that an antecedently declared purpose to kill, accompanied with the provided ability to do so with a deadly firearm, is wholly neutralized, if the party slain is, when slain, in the defendant’s castle, is palpably, as I view,it, a radical and unsound departure from the wholesome doctrine of the Watkins and Harris Cases, supra. The exercise of what, under some circumstances, would be a sound abstract right may be so colobfed by other circumstances attending as to denude the right of its innocent, lawful character. So. it is in this instance, as this record discloses.
Was there any evidence before the court below from which the jury could have found that defendant brought on the difficulty, or by his “acts or conduct” evinced a “willingness to enter the conflict?” — Reese’s Case, supra. Aside from illuminating circumstances arising by way of inference from facts shown, there was evidence of acts or conduct of the character defined in Reese’s Case, supra. Assuming, though against the weight of the evidence in this record, that Snider ac-
With the stated assumption of substantive fact in view, and mindful of the declared hostile purpose of defendant toward Snider, prepared, as he Avas,-to carry that purpose into execution, presumably, at the first opportunity, the inquiry is: What act or conduct of defendant evinced provocation of the difficulty before Snider so menaced him or manifested a willingness to enter the conflict concurrently with Snider’s menace, assuming, as indicated, that Snider did draw back to throw the cueball at defendant? The testimony affords the basis for a jury conclusion affirmative of either alternative of the stated inquiry. Some only of the testimony will be quoted.
Dave Downs, an eyewitness, testified in part: “The defendant came in. He just walked in. He had on a coat, and had his hands in his front pants pockets. * * * He [defendant] came in just about the time he shot. * * Defendant came in walking leisurely along, and didn’t stop until he commenced shooting.
Faulkner, another eyewitness, testified in part: “I noticed defendant when he came in the door, and paid, no further attention to him. The shots were fired immediately after he came in.”
The defendant testified in part: “I just walked in the poolroom, and had walked in there 15 or 18 feet, when I first saw Sam [Snider]. He walked around the table and looked up, grabbing a ball, and drew it back in a throwing position, and was facing me. I don’t remember how he had the cue stick. I fired. I was- between the first and second tables, and standing still. I got the pistol out of my hip pocket. I had my hands, in my front pocket when I first came in. * * *”
On the cross, he testified in part: “I walked in the poolroom, and didn’t stop until I fired three shots. •
Upon the laying of proper predicates, both with a view to the contradiction of defendant as a witness and, also, with the-view to the admission of the matter to follow as a confession, the solicitor propounded to Lester, the sheriff, the following question: “Mr.- Lester, I will ask you if, on the night Sam Snider was killed, you, in company with the defendant, Claude Chaney, had a conversation relative to and in regard to the shooting, and if (in) that conversation Claude made substantially this statement: That he came back from the council chamber after he saw Dr. Burns, and that he went to the poolroom, and when he walked in and saw Sam Snider that it flew all over him, and that he shot him, and he didn’t know what for?” In answer to said question, the witness said: “He made sub
This witness further testified: “It is substantially the same'statement. I don’t know just the way he put it. He said he Avent up to the council chamber and saAV Dr. Burns and had a talk with him about the matter, and left about (I forget the time) and came back to the poolroom; and when he got to the poolroom he suav this young man, and just flew all over him — he had a funny feeling. He didn’t know what he did; he shot him. He had a funny feeling, and said he shot him; said he didn’t hardly knoAv AArhat happened.”
If the statements of defendant to which the sheriff thus testified were credited by the jury, even though the jury should have found, against the weight of the evidence, that Snider menaced defendant as stated before, it was patently open to be concluded by the jury from that, as well as from the other testimony indicated or quoted, that defendant entered upon the execution of his previously stated hostile purpose the moment his eye fell upon Snider — the moment he entered the poolroom — and before he -walked 15 to 18 feet into the poolroom. Being so, it is obviously unwarranted to restrict, to limit, such testimony to the sole effect, as is done by the majority, of showing that Snider clid not menace defendant as stated. It is the order or relation of the occurrence of the acts or conduct of the parties Avhich must, as always, determine the question, in such cases, Avhether the defendant, who asserts self-defense, was free from fault in bringing on the difficulty, or evinced a willingness to enter the conflict. — Reese’s Case, supra.
To assume on such state of the evidence that the defendant Avas undisputedly shown to be free from fault, etc., in the premises, unless no menace, as stated, Avas found, is, to my mind, a plain invasion of the jury’s
In George v. State, 145 Ala. 45, 40 South. 962, 117 Am. St. Rep. 17, it was said of charge 3 there: “If not otherwise bad, it pretermits not entering into the conflict willingly. He may have been free from fault in bringing on the difficulty; yet, if he entered into it willingly, he cannot invoke the doctrine of self-defense.” (Italics supplied.) What possible reason can be given on the evidence here for not applying the like rule of law to this defendant?
Charge 2, refused to defendant, was faulty, and therefore correctly refused, because it omitted the entertainment of the honest belief that he was about to be imperiled. Such was the ruling in this case on former appeal. See comment on charges 9 and 10. It is sound law. — George’s Gase, supra. I see no occasion to depart from it on this appeal. — Wilson v. State, 140 Ala. 43, 51, 37 South. 93.
If charge 3, refused to defendant, could be said to be a correct charge in respect of the presumption of innocence, it was substantially covered by charges 1 and 7, given at defendant’s request. It is, however, an affirmatively bad instruction. It advised the jury that the presumption of innocence “should not be disregarded.” The charge as written was approved in Bailey’s Case, 168 Ala. 4, 18, 53 South. 390, 391 (charge 26), upon the authority of Neilson’s Case, 146 Ala. 683, 40 South. 221. The pertinent ruling in Neilson’s Gase is rested on Amos’ Gase, 123 Ala. 50, 26 South. 524. The charge approved in Amos’ Gase is patently different from that considered in Neilson’s Case, in Bailey’s Case, and in charge 3 here. As framed on this trial it was plainly calculated to mislead the jury to the conclusion that the presumption was not to be disregarded, whatever the
Charge 18 omitted, in hypothesis, defendant’s free- . dom from fault, etc., in bringing on the difficulty, etc. It necessarily assumes, and that Avithout warrant, that there Avas no evidence upon which it could have been found by the jury that defendant by his acts or conduct provoked the difficulty, or that he entered into the conflict Avillingly. — George’s and Reese’s Cases, supra.
I have considered the record with care. To my mind, the reversal is without support on the record here.
Concurrence in Part
concurs in the dissent and in the foregoing opinion expressing the reasons and grounds therefor.