69 So. 941 | Ala. | 1915
Appellant was convicted of murder in the first degree, and sentenced to the penitentiary for life.
The rules governing the introduction of testimony in criminal cases forbid the introduction in evidence of self-serving declarations and acts of the defendant, and the principle is sustained by a long line of authorities in this state. — Oliver v. State, 17 Ala. 595, to Hill v. State, 156 Ala. 3, 46 South. 864; Williams v. State, 105 Ala. 96, 17 South. 86. The declarations sought to be introduced did not come within the rule of Goforth’s Case, 183 Ala. 66, 63 South. 8.
There was no error in permitting the witnesses Ramsey and Malone to testify on cross-examination that they had heard of previous acts of .the defendant tending to militate against his general reputation and good character in that neighborhood. — Rutledge v. Rowland, 161 Ala. 114, 49 South. 461; White v. State, 111 Ala. 92, 21 South. 330; Lowery v. State, 98 Ala. 45, 13 South. 498; 7 Mayf. Dig. 341. One Hatfield, as a witness, had testified to defendant’s bad character, and, on cross-examination by the solicitor, was asked if he had not heard of certain specific acts of the defendant' that tended to militate against the general character of the defendant; and, against the objection of the defendant, the witness was permitted to answer questions by the solicitor of the specific acts of which he had heard. It was competent for the defendant to test by cross-examination the knowledge of the witness of the general reputation or character to which the witness has testified. Such inquiries, however, should be confined to re
In Southern Ry. Co. v. Williams, 113 Ala. 622, 21 South. 328, it was declared that the rule is not ironclad; that it does not require perfect precision as to either time, place, persons present, or the statement made. The predicate is sufficient, when it is clear that
In the case of People v. Rector, 19 Wend. (N. Y.) 569, 591, where the defendant kept a bawdyhouse in the city of Albany, the question of the right of defense to one’s castle was considered; and Mr. Justice Cowan said that it was proper to observe that, after the prisoner had given notice to the deceased and his companions to depart, his house was,. in respect to them, a mere private one; and that in the eye of the law it was entitled to the same measure of protection as the house in Meade’s Case; and that any further assault, therefore, or any apprehended assault, might be repelled upon the same principles controlling in that case. — Meades Case, Lewin’s Crown Cases, 184. Meade’s Case is recited at large in Roscoe’s Criminal Evidence, 644,
Mr. Wharton (Homicide [2d Ed.] § 547), discussing the defense of dwellings, says: “In 1873 the doctrine of Meade’s Case was affirmed, it being expressly declared that the use of deadly weapons is admissible to divert apparently felonious assault on defendant or his household.. — State v. Patterson, 45 Vt. 308 [12 Am. Rep. 200].”
The Vermont case thus cited by Mr. Wharton was where the defendant was living with his wife, mother, and sisters in a tenement house.
In Pond v. People, 8 Mich. 167, Mr. Justice Campbell, for the court, says: “A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house,- or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if he can other wise arrest or repel the assailant. — 2 Bish. Cr. L., § 569.; 3 Greenl. Ev. 117; Hawk. P. C., B. 1, c. 28, § 23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.”
In Storey v. State, 71 Ala. 337, Mr. Justice Somerville cites the authorities above referred t,o, as supporting the statement that: “Where one is attacked in his own dwelling house, he is never required to retreat. His house is his castle and the law allows him to protect its sanctity from every unlawful invasion.”
In Jones v. State, 76 Ala. 8, 16, the killing was in defendant’s barroom, of which the deceased had charge
The question was again considered in Suell v. Derricott et al., 161 Ala. 259, 273, 49 South. 895, 23 L. R. A. (N. S.) 986, 18 Ann. Cas. 636, where Mr. Justice Mayfield restated the rule as being that a man’s house is his castle for purposes of defense only; and, as- has been said by this court, it cannot be turned into an arsenal of offense. While one’s house formerly meant his home, his dwelling, the rule has also been extended to one’s place of business or his place of refuge; consequently a man’s place of business must be regarded pro hac vice his dwelling. He- has the same right to defend it against intrusion, and is under no- more necessity of retreating from the one than from the other; his duty to defend one is the same as it is to defend the other.
In Watts v. State, 177 Ala. 24, 32, 59 South. 270, 273, the doctrine of retreat in one’s dwelling was again stated: “Had the evidence showed that defendant went, into this room and was there attacked by his wife, the case might be different, and it may be that a due regard for the sacredness of human life would require a qualification of the principle announced in Jones v. State, and Hutcheson v. State, supra, to the extent that
The evidence showed that the husband and wife had taken separate rooms of the same house as dwelling-places.
In Walsch v. Call, 32 Wis. 159, 161, the court was construing a statute of exemption of the stock “in trade or business”’ and the expression was held not to embrace the stock in trade for carrying on the business of selling intoxicating liquors contrary to law. In the Walsch Case the familiar principle was applied that the credit sales for an unlawful business cannot be collected by law for the reason that the law will not permit its machinery to be used in aid of an outlawed business. —Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605. If the person so engaged in an unlawful business would not be protected in his illegal credit sales, it will not be held that if, while operating or conducting this unlawful business, he is attacked (this illegal business place not being his dwelling house), he has the same right to stand and defend that he would have in his dwelling house or house used in the conduct of a lawful business. The unlawful business house or place, and its keeper or maintainer, are for the time not protected by the special right of defense of the castle.
By reason of the rule in each case, of defense of the castle or place of business, the right to stand and defend against unlawful invasion must be held to attach to a place that at the time is a .dwelling house or house where, the owner conducts a lawful trade or business. The fundamental principle of all the cases on this subject is the right of “the castle,” and the rule is not ex
The defendant had the benefit of a proper instruction in given charge 5, which charged that the fact that defendant was engaged in the operation of a still should not be considered by the jury for any purpose in ascertaining his guilt or innocence.
The court has several times stated the conditions of apparent necessity which will excuse, under the doctrine of self-defense, in homicide cases; and these are: (1) That the defendant must have entertained an honest or bona fide belief in the, existence of necessity; and (2) the circumstances surrounding him, at the moment of the fatal shot or the delivery of the blow that caused the death of the deceased, must have been such as to impress a reasonable man, under the same circumstances, with the belief of his imminent peril and of the existence of an urgent necessity to take the life of his assailant as the only apparent alternative of saving his own life, or himself from grievous bodily harm. —Jones v. State, 76 Ala. 17; Storey v. State, 71 Ala. 329; Matthews v. State, 192 Ala. 1, 68 South. 334; Carroll v. State, 12 Ala. App. 69, 68 South. 530. Refused charge G fails to state the rule, and, moreover, singles out and gives undue prominence to a part of the evidence. It was properly refused. The defendant, however, in given charges 19 and 26, had the benefit of the instruction sought in charge G.
The judgment is affirmed.
Affirmed.