McGhee v. State, 59 So. 573

McGhee v. State

59 So. 573 | Ala. | 1912

ANDERSON, J.

There is no doubt but what the witness Dr. Rigney could give an opinion as to the mental condition of the defendant, if he knew him or had made such an examination of him as to enable him to advance an opinion; but when the witness showed that he had not examined the defendant, and only had a slight or casual acquaintance with him, there was no error in sustaining the state’s objection to a question calling for an opinion based on a casual acquaintance or observation. Moreover, after the witness had detailed the circumstances as to his acquaintance and connection with the defendant, the court asked for his opinion as to defendant’s sanity, and the witness declined to give a positive opinion, thus indicating that he could not give an opinion on the subject.

There was no error in permitting the state’s witnesses to show that the deceased did not own a pistol, did not have one on the night of the killing, and that none was found on his person after he was killed. This may have been negative evidence, but it was relevant and tended to contradict the defendant in the statement that the deceased had a pistol and tried to shoot him with it when the shooting occurred at the crib.

It has been repeatedly held that, among the other essential ingredients of self-defense, the defendant must be absolutely and entirely free from fault in provoking the difficulty, and not merely reasonably so. — Griffin v. State, 165 Ala. 29, 50 South. 962; Crawford v. State, *11112 Ala. 1, 21 South. 214, and many, other cases. It is true that, after the defendant shows the other elements of self-defense, the burden is not upon him to show that he was free from fault, and is upon the state to show that he was at fault. — Wilkins v. State, 98 Ala. 1, 13 South. 312. While the exception, however, to the oral charge would indicate that the court put the burden upon defendant, by making it his duty to show freedom from fault, the charge does not in fact misplace the burden, as it appears therefrom that the court explicitly instructed- the jury that the state must prove beyond a reasonable doubt that the defendant either provoked the difficulty or entered willingly into the fight.

When a plea of “not guilty by reason of insanity” is interposed, the burden of proof is upon the defendant to establish said plea. The statute so provides, and our court has held that the statute is not unconstitutional, and that it means what it plainly says.- — Martin v. State, 119 Ala. 1, 25 South. 255; Parrish v. State, 139 Ala. 50, 36 South. 1012. Nor was there error in the other portions of the oral charge to which exceptions were attempted, but which were not specifically reserved or set out.. The exception should set out so much of the charge as was objectionable to the defendant, and not merely refer to an attempted charge on a particular subject.

While it is incumbent upon the defendant to establish his .plea of self-defense, he meets the legal requirements if the evidence creates a reasonable doubt as to whether or not he acted in self-defense, and he does not have to satisfy the jury beyond a reasonable doubt that he acted in self-defense. If, therefore, there is a reasonable doubt, from all of the evidence, as to the defendant’s guilt, whether arising from self-defense or any other material fact in the case, the defendant is *12entitled to an acquittal. — Henson v. State, 112 Ala. 41, 21 South. 79; Ragsdale v. State, 134 Ala. 24, 32 South. 674.

There was no error, however, in refusing charges 3 and F., requested by the defendant. They seek an acquittal upon a reasonable doubt as to self-defense, and fail to set out the constituents of self-defense, thus in effect referring a question of law to the jury. — Stockdale v. State, 165 Ala. 12, 51 South. 563; Smith v. State, 130 Ala. 95, 30 South. 432; Miller v. State, 107 Ala. 40, 19 South. 37; Morris v. State, 146 Ala. 101, 41 South. 274; Mann v. State, 134 Ala. 1, 32 South. 704. It is true the court reversed the case of Henson v. State, 112 Ala. 41, 21 South. 79, for the refusal of charge 2 which is similar to the charges now considered; but this holding is contrary to the cases supra, and, while we do not wish to disturb the legal principles as declared in the Henson Case, supra, we do expressly overrule same, in so far as it holds that the refusal of charge 2 was reversible error.

Charge 2, refused the defendant, was condemned in the case of Compton v. State, 110 Ala. 24, 20 South. 119, and cases there cited. It was properly refused.

Charge 5, refused to defendant, if not otherwise bad, is faulty in using the word “reasonably” free from fault. He must be entirely free from fault. — Crawford’s Case, supra.

The trial court did not err in refusing charge 18, the general charge. It is suggested in brief of counsel that this charge should have been given because the state failed to prove the venue. There was evidence of venue. The witness Amelia McGregor, after testifying to the killing, etc., said: “This was in Lawrence county, Ala.”

*13Charge 17, requested by the defendant, 'was a mere argument, and was properly refused.

Charge 19, requested by the defendant, if not otherwise bad, pretermits an honest belief on the part of the defendant of his peril. The circumstances may have been such as to impress the defendant with a reasonable belief, yet he must have entertained an honest belief that he was in danger. — Harrison v. State, 144 Ala. 20, 40 South. 568. See charges B and C, in said case. This charge 19 is unlike the charge held good in Kennedy’s Case, 140 Ala. 1, 37 South. 90, as it predicates an acquittal upon the facts therein hypothesized, whereas the charge in the Kennedy Gase merely authorized the defendant to act on appearance without attempting to justify the killing.

Charge 20 is a mere argument.

Charges A, B, and C invade the province of the jury. They assume that the defendant was under no duty to retreat, if the first shot killed deceased. It may be true that the defendant was under no duty to retreat when the first shot was fired, if he was, as he testified, in the crib when he fired same; but the charge assumes that the defendant’s testimony on that point was true, when in fact it was disputed by the state’s evidence. The witness Willie Mays says she saw the shooting, and “it commenced out in front of the barn door.” If the shooting was in thé open and in the barn lot, where both parties had the right to be, the defendant was hot, as matter of law, relieved of the duty to retreat simply because he controlled the premises. — Perry v. State, 94 Ala. 25, 10 South 650; Lee v. State, 92 Ala. 15, 9 South. 407, 25 Am. St. Rep. 17. Of course, if the defendant was in the crib when he fired the fatal shot, and the deceased was the aggressor, the defendant was, so to speak, against the wall and could not retreat; but the *14evidence was in conflict, and'if the jury believed the state’s evidence as to when and where the shooting took place, it should not have been assumed that the defend-, ant was under no duty to retreat.

There was no error in refusing defendant’s requested charge Gr. If not otherwise bad, it authorized the defendant to take the life of the deceased upon the facts hypothesized; that is, if the deceased was standing at the door armed, whether he was making any hostile attack or demonstrations or not. The defendant may have had the right to go out of the crib; but he had no right to kill the deceased simply because he was armed, and when he was making no attempt to injure the defendant.

There was no error in refusing charge 21 requested by the defendant. It pretermits the fact that the defendant had a reasonable cause to believe that he was in imminent peril. It is not sufficient that he must have a mere reasonable belief of peril but that belief must be founded on conditions calculated to produce such a belief. In other words, there must be some overt act or hostile demonstration calculated to create a reasonable belief of peril, and which belief must be entertained, then it would be immaterial whethér such danger was real or apparent. But, if the defendant entertained a reasonable belief, or an honest belief, not based on the then action and appearance of the deceased, he would have no right to act upon his belief alone, not caused or produced by any act or conduct of the deceased. The defendant has the right to act if he believes he is in danger; but there must be facts, either real or apparent, which will reasonably produce such a belief, and which should’ be hypothesized in the charge. The charges in the Snyder Case, 145 Ala. 33, 40 South. 978, and Kennedy’s Case, 140 Ala. 1, 37 South. 90, each *15provided not only for a bona fide belief on the part of the defendant of danger, but that he also had a reasonable cause, under all the circumstances, to believe he was in imminent danger. The jury could have been misled by this charge 21 into acquitting the defendant if they thought he believed he was in danger, whether the deceased was or was not doing anything, real or apparent, to. produce such a belief. The defendant may have had a reasonable apprehension of personal violence from the deceased, growing out of previous threats or from other causes, yet the deceased, at the time of the killing, may have been making no attempt whatever to do him harm, and the defendant did not, therefore, have the right to act upon a belief, not produced by some overt act or hostile demonstration of the deceased, which was calculated to reasonably cause the belief that the defendant was in imminent danger.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Somerville, JJ., concur. Mayfield, Simpson, and Sayre, JJ., concur except as to charges 3 and P. They think that the trial court committed reversible error in refusing these charges, and therefore dissent from an affirmance of this case.