59 So. 519 | Ala. Ct. App. | 1912
The defendant was regularly indicted for murder, was tried by a jury, convicted of manslaughter in the first degree, and from the judgment of the trial court pronounced upon the verdict appeals.
The homicide ivas committed in a negro churchyard near the Alabama Great Southern Railway, about three miles west of Eutaw, in Greene county. The day of the homicide had been set aside by the church authorities for the observance of the ceremonial known as “foot-wasliing,” and the ceremonies attendant upon this religious rite appear to have attracted to the church, on this occasion, a large number of colored people, many of whom did not belong to the church referred to. A family by the name of Powell lived three or four miles from this church, and, while they were members of a different religious denomination, this family, consisting of Charlie Powell, the father, Jack Powell (the deceased), Morris Powell, William Powell, Mann
The deceased had a wife, Bell Powell, from whom he had separated a few months previously, and when the difficulty which resulted in the homicide was commenced Bell Powell was standing near the church in conversation with the defendant. She came to the church on that day in a buggy with the defendant, who, as events proved, was armed. The above-named “Yellow James” Cook and Gus Cook also appear to have been armed, and the same is certainly true with reference to the deceased and his brother John Powell. It appears from this record that a few days before the homicide the defendant was seen with the wife of the deceased, and that he said on that day “that he was prepared for Jack Powell, the deceased, at any time.” An offer was made on the part of the defendant to show by evidence that the deceased, several months before the homicide, had driven his wife, Bell Powell, from his home, and had notified her that he no longer laid any claims upon her, and that, in her stead, he
As Ave have already said, the defendant was standing near the church and near his buggy talking to Bell Powell Avhen the difficulty was commenced. The deceased committed the first overt act, for he threw a rock in the direction of the defendant. Whether he threw the rock at. the defendant or at Bell Powell we ■do not knoAV; but Ave will treat this case as if there were no doubt about the fact that the rock Avas thrown at the defendant.
Immediately after the rock was thrown, there Avas ■one — possibly two — pistol shots. The state’s evidence tends to show that the defendant, when the rock was throAvn, quickly drew his pistol and shot at the deceased. Some of the evidence tends to show that there were two pistol shots at the same time, one by the de
The deceased had five bullet wounds in his body; one in the middle of the breast, one midway betAveen the shoulder and elbow in the left arm, one through the muscle of the right arm, one in the right side, and one in the hack. All of the Avounds went straight in. The wound in the left arm entered from behind, and all of the Avounds were not made Avith the same pistol; some of the Avounds being larger than the others.
The .testimony in this case — and there were many Avitnesses — is conflicting in many material Ava.ys. The above-quoted evidence for the state was contradicted in many of its material points, as the defendant’s evidence tended to show that no one shot the deceased after he fell.
The defendant was charged with murder, but was convicted of manslaughter in the first degree. We are therefore relieved of the necessity of passing upon any question presented by this record — either in the rulings of the court on the admission or the rejection of evidence or in giving or in refusing to give charges to the
The conviction of the defendant of manslaughter in the first degree acquits him of murder in either of its degrees (Ferguson v. State, 141 Ala. 27, 37 South. 448), and we therefore have, as referable to the facts of this case, a verdict which declares that the homicide was the result of sudden passion upon provocation at the hands of the deceased amounting at the least to an assault, and that, while the homicide was unlawful, it was without malice, either express or implied. — Brewer v. State, 160 Ala. 66, 49 South. 336; McBryde v. State, 156 Ala. 44, 47 South, 302; Laws v. State, 144 Ala. 118, 42 South. 40; Logan v. State, 155 Ala. 85, 46 South. 480.
The state’s theory was that the defendant, Gus Cook, and “Yellow James” Cook had entered into a conspiracy to kill the deceased, that the homicide was the culmination of the conspiracy, and that under the facts there was murder. The theory of the defendant was that the deceased and his brothers had entered into a conspiracy to kill him, that the difficulty was provoked by the defendant in furtherance of that conspiracy, that the defendant did nothing to provoke the difficulty, that all the shots fired by him were necessarily fired to protect himself from death or great bodily harm at the hands of the deceased and one of his co-conspirators, John Powell, and that therefore he was entitled to an acquittal. The verdict of the jury has, so far as the questions presented by this appeal are concerned, exploded both theories, and this record presents to us for our consideration only such questions as we could properly review had the indictment charged the defendant with manslaughter in the first degree, and not with murder. Authorities supra.
2. There was no error in the court’s refusal to allow the witness Charles Powell, Avhile the defendant Avas. cross-examining him, to answer the following question, “So you Avere expecting some trouble, then?” Immediately preceding the above question, the witness, in answer to a question of the defendant, had testified that “the Avitness Avas standing in the road in front of'the church just before he left for home, and that Jack Powell got up and walked up to the witness and spoke to-him, but that the witness did not have anything to say to John Powell; that the witness did not know when John Powell’s wife left the church, as he did not see her when she left; that the witness did not know anything about any fuss at the church until it was all over with; and that he did not knotty that a fu,ss was about to be started when he left the churchAs the witness had already answered the above question when it was asked, the court was without error in not requiring the witness to repeat his answer. Besides, the mere uncommunicated expectations or mental status of the witness Avere irrelevant. — 6 Mayfield’s Dig. p. 349, § 9.
3. The only possible theory upon which evidence tending to show that the deceased, after he had repudiated his wife, had put up the bars around his home against her re-entrance and had supplied her place with
In the case of Gafford v. State, 122 Ala. 54, 25 South. 10, the Supreme Court held that, as there was a conflict in the evidence on the question as to who was at fault in provoking the fatal difficulty, the fact that the deceased was intimate with the defendant’s sister might have shed light on the question as to whether the deceased had a motive for killing the defendant, and that therefore evidence tending to show that fact was com
4. For the reasons above stated, Ave think that the court was free from error in permitting eAidence to go-to the jury tending to show that the defendant Avas seen with the deceased’s wife on Tuesday before the homicide, and that he brought her to church on the morning of the homicide. There was evidence tending to show that the defendant knew that the deceased objected to his attentions to his wife. On the above-Tuesday there was evidence tending to- show that the defendant said that “he AAras prepared for Jack Powell, the deceased, at any time.”' — Gafford v. State, supra.
If the defendant made that statement — and the jury and not the court was the forum to pass upon that question — then there was evidence before the jury tending to shoAV that the defendant, when seen with the Avife of deceased on Tuesday before the homicide, knew that the deceased objected to his attentions to his wife, and that the defendant was attending upon her in defiance of the wishes of the deceased.
What we have above said applies also to the case of Rogers v. State, 117 Ala. 9, 22 South. 666; except that in the Rogers Case the only evidence tending to show that the defendant was not guilty of murder was the evidence of the defendant, and his testimony tended to show a. justifiable homicide. The Supreme Court, however, in the case of Gafford v. State, supra, which is later in point of time than the case last cited, expressly
In the instant case the defendant Jcnew of his attentions to the wife of the deceased on the Tuesday previous to the homicide, and if he made the above-quoted threat the wisdom of the holding in the case of Gafford v. State is apparent. The deceased may not have been influenced by what the defendant did on that Tuesday, but the defendant may have had that Tuesday in mind when the fatal difficulty was precipitated.
5. Charge R is faulty as applied to the evidence in this case. There must have been freedom from fault on the part of the defendant in provoking the fatal difficulty for him to have successfully invoked the doctrine of self-defense. This the charge altogether ignores. There was testimony tending to show that the deceased objected to the defendant’s attentions to his wife; that the defendant not only knew of this fact, but was prepared for the deceased, and was, in the presence of the deceased, openly and knowingly paying attention to the wife of the deceased at the time of the commencement of the difficulty. The deceased and his wife may not have been living together at the time of the homicide, but the woman was nevertheless the wife of the deceased. He owed to her certain marital duties which, under the law, at the time of the fatal difficulty, she had the right to enforce against him. If the defendant knew that the deceased objected to his attentions to his wife — and the threat, if he made it, of the Tuesday before, tended to show that he not only did know it, but
There was evidence tending to show that the defendant pursued the deceased, that he shot' the deceased while the deceased was in retreat, and that he also shot him while he was down and helpless to defend himself. This feature of the evidence the charge also ignores, and was therefore misleading in its tendency.
6. In East’s “Pleas of the Grown” we find the following: “A man may repel force by force in defense of his person, habitation, or property against one who manifestly intends, or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged ta retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is-called justifiable self-defense.” — 1 East, P. C. 271.
During the formative period of the common law, every male citizen, as a rule, went armed. The gentleman carried his sword; and the yeoman his pike. As deadly weapons were therefore usually at hand, the law’ required that in chance medley — a casual or sudden affray, or an affray in the heat of blood — the slayer of his adversary, to be excusable in the eye of the law, must have retreated “to the Avail” or so far as he could without increasing his peril. “Wherefore to excuse homicide (in cases of chance medley) it must appear that the slayer had no other possible (or, at least prob
In the case of Storey v. State, 71 Ala. 337, we find the following langmage used by Mr. Justice Somerville: “When, however, the assault is manifestly felonious in Us purpose and forcible in its nature, as in murder, rape, robbery, burglary, and the like, as distinguished from secret felonies, like mere larceny from the person or the picking of one’s pocket, the party attacked is under no obligation to retreat. But he may, if necessary, stand his ground and kill his adversary.” At common law all fimcible felonies were punishable by death, and says Mr. Blackstone: “The law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to suffer with impunity any crime to be prevented by death, unless the same, if committed, would (not might) also be punished by death. In instances of 'justifiable homicide, it may be observed that the slayer is in no hind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged with commendation rather than blame.” A high degree of proof, therefore, must be adduced by him who successfully invokes the doctrine of justifiable self-defense, and any charge, when there is evidence tending to sustain such theory, is faulty which does not predicate the defendant’s freedom from fault in provoking the difficulty if the homicide resulted in the resistance of a murderous assault. Otherwise a sudden, murderous assault might be provoked for the purpose of committing murder.
Charge L is faulty in that it fails to predicate the defendant’s freedom from all fault in provoking the difficulty, and, as applied to the facts of this case, was abstract. The evidence does not disclose — and its ten
The doctrine of justifiable — as opposed to excusable —homicide Avas developed by the common-law judges not so much as a doctrine of self-defense as one for the prevention of forcible felonies, which, as above stated, Avere all punishable by death, and by death only. A sheriff, when he, under the mandate of the law, executes a criminal, commits justifiable homicide, for he is the law?s executioner. And so, at common law, a citizen, to prevent a forcible felony — one punishable by death:— upon his OAvn person or property or upon the person or property of another, Avas justified by the laAv, without retreat, in killing the would-be felon, not so much to save his own life as to prevent the commission of the felony. He Avas, in such a case, permitted to become, in fact, the law’s executioner, and to do so the law required that he be free from all fault in producing the necessity to kill.
Charge L, requested in writing by the defendant, was, for the reasons above stated, properly refused.
7. We do not think that charge 25 predicates that freedom from fault in provoking a fatal difficulty which the law exacts of a defendant when he invokes the doctrine of self-defense. It is certainly bad because it ignores the doctrine of retreat, and it was for that reason, as well as for others which, in the light of what we have already said, will suggest themselves, properly refused by the court.
8. Charge 13, requesting in writing by the defendant, was also properly refused. It was covered by charge No. 10, which was given to the jury at the written request of the defendant.
9. The facts in this case show that the fatal difficulty was of short duration. It is evident that the shooting was rapid and practically continuous from the inception of the difficulty until its conclusion. The question as to what is or what is not “cooling time” could not have arisen on the trial in the court below, and, as referable to the facts of this case, charge 32 requested in writing by the defendant was properly refused.
10. The law says that, when a defendant is placed upon trial under a criminal charge, he ma.y offer evidence as to his good character. The reasons why the law permits this testimony are well known and need not be stated here. The elements necessary to good character are also well known. Presumptively the “aver
11. We have carefully considered this record, and all the questions presented by it. We have discussed in the above opinion only the questions which have been discussed by counsel for' appellant in their brief, and counsel in their briefs have discussed the only questions presented by the record which possess the appearance of merit. We do not deem it necessary to further lengthen this opinion. We are convinced by the record that in the trial of the defendant the court below committed no error for which its judgment should be reversd.
The judgment of the court beloAv is affirmed.
Affirmed.