Montgomery v. State

49 So. 902 | Ala. | 1909

DENSON, J.

Wess Montgomery was indicted, tried, and convicted, in the circuit court of Lawrence county, for the crime of murder — the killing of Dave Pruitt. From the judgment of conviction he appeals, and here assigns for error rulings of the circuit court on the admissibility of testimony, parts of the oral charge of the court, and the refusal of the court to give written instructions requested by the defendant.

The material facts of the case are without conflict in the evidence. The homicide occurred about dark, on the 28th of August, 1908, at the home of Hubert Montgomery, a son of the defendant, out behind the smokehouse, and within the curtilage of the son’s dwelling. Defendant did not reside with his son; but he, together with deceased, one Coffee, and the son, had gone from a point in the public road to the son’s house a short time before the killing occurred. The evidence shows, that defendant had taken two or three drinks of whisky, and that deceased was to some extent intoxicated. Before starting to the house of Hubert Montgomery the defendant delivered to the deceased a sing'le-barrel shotgun which he had borrowed from deceased, and deceased ■carried the gun with him. Defendant carried a 45-cali-ber Colt’s revolver. Upon their arrival at the son’s home, deceased either left his gun near the front gate, on the south side of the house, or carried it in and laid it on a bed. Defendant stopped on the front porch, but all the others went into- the cookroom, on the north side of the house, where Mrs. Hubert Montgomery was preparing supper; that room being lighted by a lamp. Deceased shoved “some things” back from the edge of the dining table and sat on it. He began talking and used profane language. Coffee reproved deceased for using profane language in the lady’s presence. Presently defendant appeared in the cookroom, and, remonstrating with deceased for using such language in the presence ■of his daughter-in-law, told deceased he must either stop it or get out of the house. Deceased remarked that he could get out, and did go out, through the house .and by way of the south door. Some testimony, tended to show that, as he was passing out, he inquired for his gun and said he would kill defendant- — at the time applying a vile epithet to the defendant. Defendant testified that he heard deceased (as he was going out of the door) call for his gun and say: “I will kill Wess Montgomery.” In a few moments defendant appeared at the window of the cookroom, and Mrs. Montgomery exclaimed, “Look •out, he is coming with his gun; don’t let him shoot in here!” At this time defendant “looked and saw deceased pointing a gun in the window at the south end of the cookroom.” Defendant went out of the cookroom door, remarking, as he did so, something like, “If that is his game, I will mix with him.” Defendant passed out of the house oh the north side, opposite where he saw Pruitt with the gun. As he stepped out of the north door of the house, defendant drew his pistol, walked 10 or 15 feet, and had just passed the well, when he glanced to his right and saw deceased standing on the north side of the smokehouse, in the act of raising his gun towards defendant, and in the attitude of firing. Defendant fired and Pruitt fell. Defendant then walked hack to the house and informed his son, who met him, that he had shot Pruitt.

Taking defendant’s own version of the transaction,, it Avould seem wholly improbable that defendant left the house for any other purpose than to search for the deceased. In this vieAV, he was chargeable with knowledge of deceased’s feelings towards him, and, therefore, if he should find deceased, that an altercation would in all probability, if not inevitably, ensue. Indeed, defendant’s own testimony is without conflict to the effect that he went out Avith the purpose of having an altercation with deceased, or, as he expressed it, to “mix with him.” If he had remained in the house, he would, in all probability, not have been liable to molestation by deceased. Conceding that, in the house of his son, he was (under proper circumstances) excused from the doctrine of retreat, and might, while in it, make reasonable resistance to all assaults not provoked by himself, yet no person is permitted by the law to turn his castle from “a shield to a sword,” for purposes of “offensive effort. against the lives of others;” for, as was tersely said by one of our great judges (McClellan), “it is a shelter, but not a sally port.” “If he leaves its shelter to encounter a danger beyond its precincts, he is in no better attitude, before the law, than if he had come from any other place, and voluntarily entered upon a combat, from the peril of which he was secure, but for his own act. It is immaterial that, after he has armed himself and emerged from his house, he encounters a necessity to kill to save his own life. Snch necessity is, in legal contemplation, of his creation, and he cannot justify under a necessity which his own fault and wrong have contributed to produce.” — Watkins’ Case, 89 Ala. 82, 8 South. 134; Gibson’s Case, 126 Ala. 59, 28 South. 673.

In the light of the testimony, and of the considerations •and authorities above adverted to, the writer is of the opinion that while those portions of the oral charge excepted to are not models of perspicuity, and may be misleading, yet, considered in connection with the explana(ion of the court found on page 52 of the record, they i nvolve no reversible error; and upon the same considerations, he is also of the opinion that there is no reversible, ■error in the giving of charge A2, requested, by the solicitor. But Justices SIMPSON, ANDERSON, McOLEU LAR, MAYFIELD, and SAYRE are of the opinion, and hold;-that the oral charge and charge A2 constitute reversible error.

Treating charges refused to defendant: Charge 1 exacts ioo high a degree of proof. Griffith’s Gasc, 90 Ala. 583, 8 South. 812. Charge 2 has its substantial duplicate in given charge 26. Charge 3 is abstract, there being no evidence in the record that defendant was “leaving the place,” and, furthermore, pretermits the evidence tending to show that defendant left the house to seek deceased. Charge 4 (the general affirmative charge) is without foundation in the evidence. Charge 5 and 7 assert no propositions of law. — Mobile, etc., Co. v. Walsh, 146 Ala. 290, 40 South. 559; Johnson’s Case, 152 Ala. 46, 44 South. 670. Charge 6 is incomplete and unintelligible. Charge 8 authorizes an acquittal although the jury might find from the evidence that defendant left the house in search of the deceased and for the purpose of engaging in a difficulty with him. Charge 9 fails to hypothesize honest belief on the part of the defendant that he was in imminent peril, and for this reason (if for no other) was properly refused. Wilson’s Case, 140 Ala. 43, 37 South. 93; McClellan’s Case, 140 Ala. 99, 37 South. 239; Jones’ Case,. 76. Ala. 8. Charge 10 is elliptical, besides, being subject to the last criticism made of charge 9. Charge 11 is so patently bad as to require no pointing out of its defects in detail. Charge 12 is misleading and argumentative. Charge 13 is involved and confusing, and leaves out of view the phase of the evidence that defendant’s purpose in leaving the house was to find deceased and engage in a re-encounter with him. Charge 14, viewed in the light of the evidence, needs no comment to expose its several vices. Watkins’ Case, 89 Ala. 82, 8 South. 134; Reese’s Case, 135 Ala. 13, 33 South. 672; Wilson’s Case, 140 Ala. 37 South. 93. Whether charge 15 states a correct proposition or not, it makes no pretense of being applicable to the case in hand, and is therefore misleading. It is, moreover, mere argument. Again, there is no evidence tending to show that the killing was done in repelling a trespass either in or upon the dwelling. The law on ly requires the exclusion of reasonable hypotheses of guilt; hence charges 3.6 and 18 are bad.- — Crawford’s Case, 112 Ala. 1, 26, 21 South. 214. Charge 17, besides being otherwise vicious, is a mere argument. Charge 19 is abstract, and, besides, assumes that defendant was defending his son’s house. It is conceded by appellant’s counsel that charge 20 is incomplete and lacking in clearness. Charges 21 and 23 are disapproved by our later decisions. —Amos’ Case, 123 Ala. 50, 26 South. 524; Rodgers’ Case, 117 Ala. 15, 22 South. 666; Shirley’s Case, 144 Ala. 35, 42, 40 South. 269. Charges 22 and 24 are abstract. Charge 25 pretermits consideration of the testimony tending to show that defendant was seeking deceased. For the reasons given, the several charges requested by the defendant were properly refused.

Whether or not defendant was carrying a gun for witness McKay, of itself, was irrelevant to any issue in the case; but subsequent evidence shows that testimony of that fact was offered merely as preliminary to proof of a threat against the Pruitts, made by defendant in the same conversation, to the effect that “if those Pruitts bothered him he would kill some of them.” The threat is not inadmissible on the ground of indefiniteness as to the persons against whom made; the deceased being one of the class referred to. The same may be said as to objections to the testimony of' witness Wilkerson, and shows that the court committed no reversible error in admitting the testimony.

No effort was made by the. state to show that deceased bore a good character. After it had been proved, on. cross-examination of witness McKay, that deceased bore the reputation of being a dangerous and bloodthirsty man, the court committed no error in not permitting defendant to prove admissions, made by deceased, in respect to his lying in wait for a man named Stewart, and that he went to Stewart’s, house to kill him.

Nor did the court err in sustaining the objection of the state to the question propounded to the witness. Throckmorton. The court was not advised as to what the expected answer would be, and the question was susceptible of an answer that would have been wholly immaterial. — Ross’ Case, 139 Ala. 144, 36 South. 718.

Whether or not the defendant was drunk on the particular occasion was relevant and material; hence no-error was committed in allowing testimony tending to -show that fact.

Even if it were incompetent for witness Tom Pruitt to-testify that, while he (defendant), Hubert Montgomery, and Montgomery’s wife were walking along the road that evening, just after the homicide was committed, going to defendant’s house, neither Hubert nor his wife told him that Dave Pruitt had been killed, it was, undei the evidence, competent for him to testify that the defendant said nothing about it, and the question, calling for competent evidence, ivas not subpect to the general objection made thereto.

For the errors pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.

Simpson, Anderson, McClellan, Mayfield, and Sayre, JJ., concur. Denson, J., dissents.