Kennedy v. State

| Ala. | Nov 15, 1903

MoCLELLAN, C. J.

Charge 1 requested by defendant is not abstract: there was evidence tending to show that defendant was in imminent peril to all appearances and that he believed that he was about to be shot by Young when he shot Young. The charge is a correct statement of the law, that it is immaterial in such case whether the apparent danger was in fact real danger. It deals only with this question. It does not affirm that on the facts postulated, viz., the apparent danger and defendant’s belief in its reality, the defendant had a right to shoot, nor that he should be acquitted. It does not profess to deal with the other condition to defendant’s right to kill, namely, his freedom from fault in bringing on the difficulty; nor in our opinion, has it any tendency to mislead the jury to the conclusion that if he was or reasonably appeared to be presently in danger of life or grievous bodily harm, and believed he was in such danger, he had the right to shoot whether he was the aggressor or not. The charge does not deal with the subject of aggression, nor purport to state the law in that connection. It deals only with the character of danger as being real, or apparent only, which is one of the three elements of self-defense in ordinary cases, the other two being freedom from fault and inability to retreat, and one of the two in this case as the defendant was within the curtilage of his castle, and hence under no duty to retreat. It has no bearing upon the inquiry of the aggression vel non, and we cannot believe it would have misled the. jury to a pretermission of that inquiry. The court erred in refusing it.

We find no error in the rulings of the court refusing to give other charges requested by the defendant.

On another trial the inquiry into the relations of Young, the deceased, and Mrs. Cowan, defendant’s daughter, and defendant’s attitude in that connection should he confined to the facts that they were engaged to be married, that Young had had carnal knowledge of her, and wanted her to run away with him and be married before she obtained a divorce from her husband, and that defendant knew of their purpose to marry and opposed it, and opposed their associating together before she was divorced and that he had been told that Young had, two days before the homicide, assaulted his daughter. This much of the relations, etc., of Young and Mrs. Cowan was pertinent as throwing, light upon the inquiry as to who was the aggressor, upon the reasonableness of Kennedy’s belief, if he had such belief, that Young Avas about to shoot him, and, on the other band, as tending to show motive on Kennedy’s part to kill Young; but further particulars of this association tend more to multiply issues than to'slied any legitimate light on the homicide.

Evidence should be received of the story Young, according to Kennedy, had told Mrs. Cowan concerning Miss Grider. Such evidence would tend to account for the presence of Lee Grider, her brother, and Arnold, her cousin, and Young at Kennedy’s on the occasion of the homicide.

We do not find any predicate in the evidence for proof of Young’s good character. No evidence on the subject had been adduced when Mrs. Arnold was interrogated about it, or ever was except hers against defendant’s objection. Evidence that two days before his death he assaulted Mrs. Cowan is not evidence against his standing and reputation in the community; the community knew nothing about that assault. Nor did the evidence of his threats against Kennedy at all import that his character was bad. No attack, in other words, had been made upon his character, and evidence should not have been received to prove that he was a man of good character — a gentleman, “proved’’ or otherwise.

The fact that Young told Mrs. Arnold on Tuesday, the day of the night of the homicide, that “lie did not feel well” was impertinent.

Reversed and remanded.