Lawson v. State

155 Ala. 44 | Ala. | 1908

DOWDELL, J.

The defendant was tried on an indictment for murder in the first degree, and was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 40 years. As we understand the evidence in this case, there was but one difficulty between the defendant and the deceased. What is termed by counsel a previous difficulty was but the commencement of the one difficulty that ended in the tragedy. The defendant had words with one Walter White and the deceased, and walked rapidly away from them a short distance, about 100 yards, to a store, where he purchased a gun and returned in a few minutes, walking rapidly back to where the deceased was, and renewed the quarrel, and then shot the deceased. Clearly to our minds the difficulty in which the shooting occurred was but the continuation of what is termed the “prior difficulty,” and, with the brief interval of time taken by the defendant within which to procure a gun, constituted but one transaction. There was no error committed in allowing the witness White to testify as to what occurred at the commencement of the difficulty.

There was no error in sustaining the state’s objection to the question asked the witness Murdock as to the turbulent and bad character of the deceased. At the time this question was asked, the evidence had not shown that the defendant acted in self-defense, but tended to show that the defendant provoked the difficulty, or at least that he was at fault in bringing it on.

In the several written charges given at the request of the state no reversible error was committed.

Charge 33, refused to the defendant, ignores a willingness on the part of the defendant to engage in the difficulty. Moreover, the charge- singles out one circumstance, when all the circumstances in the case must be considered, each in the light of the other, in determining whether the defendant was at fault in bringing on the difficulty, and it furthermore ignores the question of the defendant’s belief in the imminency of peril. — Mitchell v. State, 133 Ala. 65, 32 South. 132.

Charge 34, if good, was substantially covered in other written charges given at the request of the defendant, and for this reason, if no other, its refusal was free from error.

Charge 35, requested by the defendant, while correct as an abstract proposition of law, yet in the light of the evidence in this case it was calculated to mislead, and was therefore properly refused.

Charge 36, requested by the defendant, is palpably erroneous, and was properly refused.

Reasonable doubt as to whether the killing was in self-defense does not entitle the defendant to an acquittal, and hence charge 37 was properly refused. Under the plea of self-defense, the burden of proof is on the defendant, and, unless the jury are satisfied from the evidence that the plea is sustained, the defense fails. A reasonable doubt as to whether the plea is sustained is not sufficient to justify an acquittal.

There was no evidence as to the deceased being a man of turbulent, dangerous, or bad character, and hence .charges 38, requested by the defendant,, was abstract, and for this reason, if no other, the court committed no error in refusing it.

Charges 39 and 40 were faulty in omitting to hypothesize a belief by the defendant in an imminency of peril, besides being in other respects bad, and were properly refused.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.