144 So. 834 | Ala. | 1932
The action is under our homicide statute (Code 1923, § 5696), with verdict and judgment for plaintiff. Defendant admitted the killing, and sought to justify upon his plea of self-defense, upon which issue the evidence was conflicting. In such a plea all the elements of self-defense should appear (Drummond v. Drummond,
Assignments of error 5 and 6 as to rulings on demurrers to pleas 2 and 3 are not well taken. Moreover, it appears these pleas originally contained such averment, though defective in form, and the amendment thereof merely cured such defect, and did not change the pleas in substance and effect. No injury, therefore, in any event, could have resulted to defendant from this ruling.
Appellant insists there was reversible error in the refusal of charges G and H, relying upon Morris v. McClellan,
In Birmingham Trust Savings Co. v. Acacia Mut. Life Ass'n,
Moreover, defendant received the benefit of these charges in charge 13, given in his behalf, which relieved him of all burden of proving his freedom from fault and entitled him to a verdict in his favor if the jury was reasonably satisfied from the evidence of the other elements of self-defense hypothesized therein. The jury, under this charge, were not concerned with the administrative rule as to the duty of going forward with the evidence, and this given charge was more favorable than those refused. In no event, therefore, could error to reverse be said to appear. So. Rwy. Co. v. Pruett,
Pleas 2 and 3 contain affirmative averments of freedom from fault, under which form of pleading the case of Mt. Vernon-Woodberry Mills v. Little, supra, justified the refusal of charge 1 in Riley v. Denegre, supra, followed in Parke v. Dennard,
At the time of the shooting, defendant was in his automobile and shot deceased with a derringer pistol. The plaintiff, over defendant's general objection, was allowed to prove and offer in evidence a "sawed off" shotgun, which was at the same time found in the front part of defendant's car "down on the floor board." True, defendant made no use of the gun, but its discovery in the car constituted a part of the "surroundings and circumstances" of the killing, and was admissible as a part of the res gestæ and particularly in view of the plea of self-defense. Ragland v. State,
The cases of People v. Riggins,
The exceptions reserved to the oral charge, constituting assignments 27, 28, and 29, were in a general way and by the subjects only, which gave to the trial court no definite information upon which the objections were based. We are inclined to the view the manner of reservation of these exceptions do not suffice to meet the requirements of our rule. Crenshaw Co. v. Seaboard Air Line Rwy. Co.,
But, this aside and undetermined, we find in these assignments no error to reverse. The trial court was engaged in defining the elements of murder in the first and second degree and manslaughter in the first degree with the idea that in awarding the damages the jury could properly consider these various elements of the crime to determine the degree of defendant's culpability, if not exonerated of the charge, and such was the connection in which the court had defined the constituent elements of the crime charged. So considered, therefore, we think the jury understood all such instructions were withdrawn, when, at the conclusion of the charge, the court stated: "Gentlemen of the jury, I will withdraw from you all I said about basing your damages on what you ascertain from the evidence that the killing constituted murder in the first degree or murder in the second degree, or manslaughter in the first degree." And, if defendant was apprehensive such was not the effect of the withdrawal, he should have then requested further instructions. He reserved no further exception, nor did he make further request for more definite withdrawal by charge or otherwise.
We do not mean to indicate a view that the notion originally entertained by the trial judge was erroneous, in view of the fact that under our homicide statute the damages are purely punitive and not compensatory. Dowling v. Garner,
The writer (with whom Justice KNIGHT concurs) is of the opinion that the assignments argued in brief present no error to reverse, and that the judgment should be affirmed. As to refused charge H and the exception to the oral charge constituting assignment 32, they entertain the view that the authorities herein cited sustain the action of the trial court in this regard, and that these authorities should not now be disturbed, and the doctrine of stare decisis should be given application.
But a majority of the court, consisting of Chief Justice ANDERSON and Associate Justices THOMAS, BOULDIN, BROWN, and FOSTER, while concurring in the foregoing opinion in all other respects, entertain the view that reversible error was committed as to assignment 32 (exception to the oral charge) and refusal of charge H. As to charge H, however, Justice FOSTER agrees with the opinion, and confines his concurrence in reversal to assignment 32. The views of the majority are expressed by them as follows:
A majority of the court, namely, ANDERSON, C. J., THOMAS, BOULDIN, BROWN, and FOSTER, are of the opinion that the portion of the oral charge of the court to which exception was reserved misplaces the burden of proof on the question of defendant's freedom from fault in provoking or encouraging the difficulty, and was error to reverse. Morris v. McClellan,
The same justices, except Justice FOSTER, are also of the opinion there was error in refusing defendant's written charge H. This charge does not deal with the burden of proof in reciting the hypothetical facts shown by defendant. That the charge uses the expression "burden shifts to plaintiff," to prove defendant at fault, did not justify its refusal. We adopt and follow what was written in Birmingham Trust Savings Co. v. Acacia Mutual Life Ass'n,
Neither does the mere form of the plea, whether affirmatively averring defendant "was free from fault," or negatively, such as "was not at fault," work any change in the burden of proof. The holding to the contrary in Mt. Vernon-Woodberry Mills v. Little, supra, and cases supporting same are also overruled on that point.
Charge G was confusing and misleading, not to say self-contradictory, and was properly refused. As to charge H, Justice FOSTER concurs in the opinion of Justice GARDNER. *632
It results from the holding of the majority, as above indicated, that the judgment must be reversed.
Reversed and remanded.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, and FOSTER, JJ., concur.
GARDNER and KNIGHT, JJ., dissent.