104 So. 771 | Ala. Ct. App. | 1924
Lead Opinion
The issues in this case appear to have centered more on the question of undue familiarity of the deceased with the wife of defendant than upon the main question of the guilt or innocence of the defendant as to the offense charged. The facts incident to the homicide are few and briefly told. The defendant and his wife had separated, and for some time prior to the homicide had lived apart. The deceased was, and *662 had been for a long time, the family physician of defendant and his wife, had treated her for a miscarriage, and had visited her at her home, and she had visited the deceased at his office. The evidence for the state tending to prove that these visits and attentions were purely professional, and that for defendant tending to show, though not directly, an improper relation. Defendant had, before the separation, remonstrated with his wife for visiting the deceased in his office, to no avail. Some four hours before the homicide, defendant armed himself with a pistol, went to the office of deceased in the daytime, while his wife was there, waited in the hall near the door of the office — the door being open — and, when deceased came into the hall, defendant fired three shots at him from the pistol. One of these shots produced a mortal wound, from which deceased died in a short while. When the deceased came into the hall he had in his hand a hatchet, the state's evidence tending to show that with this hatchet deceased was preparing to cut some kindling wood, with which to make a fire. The defendant's evidence tended to show that, when deceased saw defendant standing in the hall, he raised the hatchet as if to strike defendant, and defendant shot in order to prevent the loss of life or receiving great bodily harm.
The rulings of the court on the admission of evidence are so clearly free from error as not to merit a detailed discussion or the citation of authority. Besides, no exception is properly reserved. After each ruling of the court is noted, "The defendant then and there duly accepted." While it is possible that this might be held to be a clerical error, no exception is in fact reserved.
Charges 1 and 16 are bad. Even if the defendant was free from fault in bringing on the difficulty, he would not be guiltless, if he killed deceased without a pressing necessity to do so in order to protect himself from death or great bodily harm and not then if he could have avoided the taking of life by a retreat which would not apparently have increased his peril. Cooke v. State,
Charges 2 and 3 are argumentative.
Charge 4 is misleading.
Charges 5 and 6 ignore the doctrine of retreat.
Charges 6A, 10, and 17 were amply covered by the court in its oral charge, and charges given at defendant's request.
Charge 10A is misleading in its tendencies. The correct rule of self-defense, including freedom from fault, impending peril, and the doctrine of retreat, are all compassed in 10A. These rules of law had been fully covered by the court in both the oral and the given written charges.
The refusal of the other charges have so often been passed on and held to be bad, we do not here do more than approve the trial court's action.
We find no error in the record, and the judgment is affirmed.
Affirmed.
Addendum
This case was affirmed by this court on June 10, 1924. On June 25, 1924, application for rehearing was made, and on July 22d, at an adjourned term of this court, the application was overruled. On September 2, 1924, and while this court was still in adjourned session, the court ex mero motu, ordered the cause restored to the rehearing docket for further consideration of charge 2, refused to defendant on the trial in the circuit court. Petition for certiorari was applied for to the Supreme Court upon the overruling by this court of appellant's application for rehearing, which application was denied by the Supreme Court on October 6, 1924.
It is but fair to this court and to the Supreme Court to say that, neither in the original submission, nor in the application for rehearing, was the court's especial attention directed to the authorities controlling the proposition of law set out in refused charge 2, which we now proceed to consider.
Charge 2, refused to defendant, was held to be a good charge and its refusal to constitute reversible error in Mitchell's Case,
Addendum
is of the opinion that the principle of law embodied in refused charge 2 is substantially covered in given charge 14, but as to this the other members of the court hold that such is not the case, and that the cause should be reversed.
Addendum
The opinion of this court on rehearing has been revised to meet the decision of the Supreme Court (Ex parte State ex rel. Atty. Gen., in re State v. Jones,
Affirmed.
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