62 So. 1029 | Ala. Ct. App. | 1913
— The defendant, Jake Givens, was jointly indicted with Ed Smith for the murder of Monk Holman; one count charging the murder to have been committed by shooting deceased with a gun and the other by striking him with a stick. The defendant was tried separately and convicted of manslaughter in
It is perhaps necessary to an understanding of the disposition we make of this question that we should review briefly the facts. It appears that shortly before the fatal difficulty, which occurred on a Sunday in the public road, five persons were seen passing in a group along the road by Will Chambers’ store, to wit, the defendant, Jake Givens, his codefendant and stepson, Ed Smith, his stepson, Lonzo Smith, his wife, Samantha Givens, and deceased, Monk Holman; the two former walking in front, the other two next, and the deceased following some 16 or 25 feet behind. At the time the parties passed a quarrel or argument over a dollar was in progress and. going on between deceased, who, as said, was following in the rear, and the defendant, who, with the codefendant, was in front. The defendant was heard to say to the deceased, “I don’t owe you any dollar,” to which deceased replied with an oath, “You do
Of course if the defendant in striking deceased had no further purpose than merely to inflict a battery upon him, and there was no conspiracy, preconcert, or common design or understanding between him and the code-fendant that the latter was to help' him should the need arise, and he. did'not counsel, incite, procure, or consent .to the latter’s act; or even if there was such an understanding, and the latter willfully exceeded the common .purpose by killing deceased, when he knew it was not necessary to the accomplishment of the common purpose, and in doing so acted independently of, and without reference to, such purpose, and without the consent, counsel, incitement, or procurement of defendant, but from particular malice or motives of his own, whether to punish for a real or supposed affront to his mother or otherwise, the defendant would not. be responsible for .the act of his codefendant, Ed Smith, in killing deceased. — Martin v. State, 89 Ala. 119, 129, 8 South. 23, 18 Am. St. Rep. 91; Jordan v. State, 79 Ala. 9; Jordan v. State, 81 Ala. 32, 1 South. 577; Frank v. State, 27 Ala. 42; Amos v. State, 83 Ala. 4, 3 South. 4, 3 South. 749, 3 Am. St. Rep. 682; Tidwell v. State, 70 Ala. 33; Tanner v. State, 92 Ala. 1, 9 South. 613; Brunson v. State, 124 Ala. 37, 27 South. 410; J. Van Smith v. State, Infra, 62 South. 575. But. on the other hand, if the co-defendant was acting in concert with defendant and to aid and abet him in an unlawful purpose to- kill deceased or even to inflict bodily harm upon him, either as the .result of a previously formed conspiracy or present created understanding between them, or if the codefend-
The law does not require positive proof of any fact; it is sufficient if the circumstances proved afford a reasonable inference of the existence of the fact. — Authorities supra.
For this reason the court properly admitted proof that codefendant, Ed Smith, fired the shot that killed deceased, and all the circumstances of it. Besides being admissible for the reason stated, such fact was also clearly admissible as a part of the res gestse.— Smith v. State, 52 Ala. 407.
The defendant requested this charge: “The court charges the jury that if they believe from the evidence in this case, beyond a reasonable doubt, that Ed Smith shot deceased in defense of Ed Smith’s mother, then the jury must acquit the defendant.” It is sufficient to say in criticism of this charge, without adverting to other considerations which would condemn it in this case, that the right of a son to kill in defense of his mother, when she is assailed, depends upon - her right to kill in defense of herself when she is so assailed. As to whether the mother had the right to defend herself under the circumstances would depend upon whether she was free from fault in bringing on the difficulty, and, if so, whether she could not have retreated and
The defendant also requested the following written charge, to wit: “The court charges the jury that if from all the evidence in this case they are left in uncertainty or doubt as to whether or not, at the moment Ed Smith fired the fatal shot, he was acting in defense of his mother, then you must acquit the defendant.”
Besides being properly refused because faulty for reasons already given in consideration of the other charge, and further faulty in that it is not a correct exposition of the law, which requires a conviction unless the jury have a reasonable doubt of defendant’s guilt, it is furthermore, under recent rulings of our S'upreme Court, where all the previous cases are reviewed, never now reversible error for the trial court to refuse charges predicted upon a. doubt or uncertainty, one or both, or upon a state of confusion in the minds of the jury. Whether the trial court will be put in error for giving such charges is not there decided, but it is settled that it will not be reversed for refusing them. — A. G. S. R. R. Co. v. Robinson (Sup.) 62 South. 813.
Charge No. 3 refused to defendant reads: “The court charges the jury that, unless they believe from the evidence beyond a reasonable doubt that Ed Smith shot Monk Holman as the result of the preconceived knowledge, assent, connivance, and agreement of this defendant, then you must find the defendant not guilty.” It will be observed that the charge is in the conjunctive and- requires, before defendant can be held responsible for the act of Ed Smith, a belief on the part of the jury that there should have been a preconceived knowledge,
• We .find no error in the record, and the judgment of conviction *is. affirmed;.
Affirmed.