132 So. 61 | Ala. Ct. App. | 1931
The indictment in this case upon which this appellant was put to trial charged him with the offense of murder in the first degree, in that "he unlawfully and with malice afore-thought *169 killed John Thomas McCord by shooting him with a pistol." The trial resulted in the conviction of appellant of murder in the second degree, and his punishment was fixed at imprisonment in the penitentiary for ten years. He was sentenced accordingly, and judgment of conviction was duly entered, from which this appeal was taken.
The state insisted that the killing of McCord by this appellant was a cruel and uncalled for murder, and that the testimony of wholly disinterested eyewitnesses fully met the burden of proof resting upon the state, and was sufficient to make out the case of murder as charged in the indictment. The defendant, on the other hand, insisted that the killing was done in self-defense, and offered some testimony to sustain this insistence. Thus a jury question on the facts was presented. We pretermit a discussion of the evidence and its tendencies, for, without reference to the apparent atrocity of the crime charged and the evidence in support thereof, the defendant on trial, as in all criminal cases, was entitled to a fair and impartial trial free from prejudicial error.
Several insistences of error are presented, but, with exception of the two points of decision hereinafter discussed, we discover no error in any of the court's rulings to which exceptions were reserved sufficient to necessitate a reversal of the judgment of conviction from which this appeal was taken.
The two questions referred to relate to exceptions reserved by appellant to two excerpts of the court's oral charge on the question of the burden of proof as to the law of self-defense. These exceptions were properly reserved, and, as shown by the bill of exceptions, are as follows:
(1) "The burden being on the defendant to prove he was in imminent danger of death, or grievous bodily harm, either actual or apparent."
(2) "Now as I said, the burden is on the defendant, to prove every element of self-defense, except only in this; that the burden is on the State to prove that the defendant was not free from fault in bringing on the difficulty."
Innumerable decisions of the Supreme Court of this state, covering a long period of years, have given approval to charges, oral and written, of the same import of the charge here given and complained of; and, so far as we have been able to ascertain, those decisions have never been overruled or modified directly; and these opinions sustain the lower court in the case at bar in the manner or method of stating the law of self-defense and the burden of proof resting upon the accused. But in later, in fact, in recent decisions of the Supreme Court, the charge in question has been held to be error as placing too great a burden upon the defendant. As now stated, the rule seems to be, when self-defense is relied upon, the accused is under the duty only to offer such evidence in support of said plea as will, when considered with the whole evidence, generate in the minds of the jury a reasonable doubt of his guilt. These opinions expressly hold it error to charge the jury that the burden of proof is upon the defendant to establish or prove the two elements of self-defense here involved. Roberson v. State,
In Perry v. State,
"But defendant's complaint is that the burden was too heavily laid upon him, that he should not have been required to prove the named elements of self-defense to the reasonable satisfaction of the jury, but that he met the requirements of the law if his evidence created a reasonable doubt as to whether he acted in self-defense, and the latest decisions of this court have been in accord with this contention. McGhee v. State [
In the case of Ex parte Williams,
"The burden rests upon this defendant to satisfy the jury that two of the elements of self-defense existed; with regard to self-defense there are two points about which the defendant must satisfy you — he must satisfy you that before he struck to kill the danger existed, either the real or reasonably apparent danger, and then he must satisfy you that to have retreated would have increased his peril, or that it would have so appeared to a reasonable man placed as he then was. * * * And the burden is upon him to establish the existence of these two elements; he must reasonably satisfy you there."
As to this charge the Supreme Court, through Mr. Justice Somerville, said:
"This instruction was erroneous (Ragsdale v. State,
In this case the court also stated:
"In homicide cases, where self-defense is relied upon — the state having made out a prima facie case of intentional killing by evidence which does not itself tend to show that the killing was done in self-defense — the burden rests upon the defendant to offer some evidence tending to show (1) that he was in actual and imminent danger of death or serious bodily harm, or that he honestly and reasonably believed that he was in such danger by reason of circumstances apparent to him; and (2) that he was apparently unable to retreat in safety, or without increasing his peril.
"The defendant's burden in this behalf has often been loosely referred to as the burden of proving self-defense, and sometimes as the burden of reasonably satisfying the jury of the existence of the two elements above referred to. But the actual burden is not a burden of proof, in the ordinary sense of the phrase, to establish an issue to the reasonable satisfaction of the jury, but a burden merely of offering enough evidence tending to show these two elements to generate, in connection with all the other evidence, a reasonable doubt of defendant's guilt of the unlawful killing charged."
Other recent decisions in line with the foregoing are: Jones v. State,
The decisions of the Supreme Court shall govern the holdings and decisions of this court. Section 7318, Code 1923. We therefore perforce must hold that the exceptions to the oral charge of the court in the case at bar, hereinabove quoted, were well taken and must be sustained. This, of course, necessitates a reversal of the judgment of conviction from which this appeal was taken, and it is so ordered.
Reversed and remanded.
