75 So. 261 | Ala. Ct. App. | 1917
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *57 The defendant killed Daniel F. Tillerson and was convicted of murder in the second degree. The evidence shows that both the deceased and defendant were guests of J.R. Tillerson, the father of the deceased and father-in-law of the defendant; that the homicide occurred in the evening between 6 and 7 o'clock in the front yard of J.R. Tillerson's residence. The defendant invoked the doctrine of self-defense, and offered evidence, tending to sustain the old worn-out theory that the deceased, after throwing a stone at the defendant, moved his hand in the direction of his pistol pocket, and defendant fired one shot, which struck the deceased in the temple and caused his death, and it was afterwards discovered that deceased was unarmed.
Among other matters complained of is the refusal of special charges asserting that the circumstances surrounding the defendant at the time of the homicide relieved him from the duty of retreating, on the theory that he was a guest of J.R. Tillerson, and had the right to, stand his ground in the front yard and defend himself, even to, the taking of the life of his assailant. These charges were properly refused. While the evidence shows that defendant and his wife were the house guests of J.R. Tillerson for the weekend, it also shows, or tends to show, that the deceased and his wife were visitors of said J.R. Tillerson, and that deceased was also a guest, and there is no doubt that the defendant and the deceased, in so far as the law of self-defense is concerned, were on equal footing; and if one assaulted the other, and thus endangered his life, it was the duty of the one so assaulted to retreat if he could do so with safety, and thus avoid taking the life of his assailant, although he was free from fault in bringing about the condition that imperiled his life or limb. Thomas v. State,
The indictment was for murder in the second degree, and there was no necessity for the court to charge on murder in the first degree; but it was not improper to do so as an incident to stating the elements of murder in the second degree. Furthermore, the conviction was for murder in the second degree, and the refusal of charges as to murder in the first degree resulted in no injury to appellant. Bluett v. State,
The undisputed evidence shows that the defendant intentionally shot the deceased and killed him, and charges as to the elements of manslaughter in the second degree were refused without error. Thomas v. State,
It is well settled that the use of a deadly weapon in committing a homicide authorizes an inference to be drawn by the jury that the element of malice was present. Newsom v. State,
Where it is shown that the killing was accomplished by the intentional use of a deadly weapon, and the evidence necessarily relied on to sustain the charge has no tendency to rebut the presumption, the presumption of law is that the killing was malicious. Newsom v. State, supra; Jones v. State, supra; Hornsby v. State,
The defendant requested 81 special charges, 49 of which were given, and the others refused. Those undertaking to state the doctrine of "apparent necessity" to take life to save from grievous harm or death pretermit either that the defendant entertained an honest belief that he was in peril or that the circumstances must be such as to impress a reasonable man situated as the defendant was that he was in such peril. Thomas v. State, supra; Matthews v. State,
It was not permissible to show that the witness Mrs. Duke, before her marriage to deceased, had given birth to a child. Specific delinquencies cannot be shown for the purpose of impeaching a witness. Smith v. State,
The exclamation of Mrs. Cole, if coincident with the firing of the shot that caused the death of deceased, produced by and instinctive upon the occurrence, rather than a retrospective narrative, although she was not immediately present, was of the res gestæ, and was properly admitted. Lundsford v. State,
The question asked the character witness McAdory on cross-examination predicated on what some of the evidence for the state tended to show, had occurred at the time of the homicide, as to the use of abusive language in the presence of deceased's wife, was improper. Way v. State,
The objections to the questions asked the witness Ed Parker with reference to his impeachment as a witness in other cases should have been sustained.
Section 5362 of the Code provides:
"The court may state to the jury the law of the case, and may also state the evidence when same is disputed, but shallnot charge upon the effect of the testimony, unless required to do so by one of the parties."
And if the evidence is in dispute, or affords conflicting inferences, it is reversible error for the court to charge on the effect of the evidence in the oral charge. Will Doby v. State,
The court, in the oral charge, instructed the jury:
(1) "I charge you, then, that if you believe from the evidence, beyond a reasonable doubt, that this defendant used the language that was testified to that he did use, speaking with reference to the dogs and those people — it is unnecessary to repeat the epithet that was used, the vulgarity that was used, you gentlemen remember it — I charge you, then, and it was done in the presence of the wife of the deceased, as being used in the presence of his wife, and if that produced the difficulty, I charge you that this defendant was at fault, and then the protection of self-defense falls."
(2) "Another element that goes to make up, self-defense need not be considered, because, if he was at fault in bringing on the difficulty, by the language that he used, and used in the presence of the wife of the deceased, the deceased was not at fault in speaking to him about using such language, but he was at fault in bringing on the difficulty by using it."
(3) "I charge you that if, from the evidence, you believe beyond a reasonable doubt, that he took the pistol that he says was a pistol of his father-in-law, that he had cleaned up, and he carried that pistol out there with the purpose of using it, should it become necessary for him to use it in defense ofhimself, and he did use it in compliance with the preconceived purpose of using it, should it become necessary, he would be guilty."
(4) "I charge you that, if this rock was thrown by the deceased, as testified to by this defendant, and that it was afterwards that he had used in the presence of the wife, in response to the words it was testified he used when the deceased told him he was tired of it, and then fired upon him, I charge you that he would be guilty, because he was not free from fault in bringing on the difficulty."
(5) "I charge you that, if deceased threw the rock at him, and the rock missed him, and he was standing there unarmed, having thrown the rock, and this man was standing, this defendant was standing with the pistol in his hand, and he fired upon him, then he would be guilty, would be no self-defense in that."
(6) "Now, I charge you that if, from this evidence, you believe beyond a reasonable doubt that the rock was thrown, and that even though the rock was thrown without his having made the least removal, and then he fired upon him when he had him in his power, he would be guilty."
The excerpts to which exceptions were reserved are charges on the effect of the evidence in violation of the statute, are invasive of the province, of the jury, ignoring the right of the defendant, if the circumstances surrounding him at the time of the homicide were such as to impress a reasonable man that the defendant was in imminent danger of losing his life or suffering grievous harm, and he in fact honestly so believed, to defend himself against such peril.
Reversed and remanded.
