Patterson v. State

May 8, 1906
Versions:41 So. 157
146 Ala. 39
1906 Ala. LEXIS 101
SIMPSON, J.

The defendant was convicted under an indictment charging murder, committed in LaAvrence *44county. The position taken- by appellee that the venue was not proved, because the offense was committed (if at all) on an island in the Tennessee river, a little nearer the Limestone county line than to that of Lawrence county, is untenable. The place was evidently within a fourth of a mile of the county line, as provided by § 4972 of the code of 1896; but, aside from that, this court has held that under § 1400 of the code of 1896 each county has jurisdiction over the Tennessee river to the margin of the stream on the opposite side. — Jackson v. State, 90 Ala. 590, 8 South. 862.

The exception to the question to the witness Davis, and the answer thereto, as to whether the defendant saw the hand ax at the mill in the morning, was properly overruled, as this was a material circumstance tending to show where the ax Avas.

There Avas no error in excluding the testimony of the Avitness Lang as to the particulars of the previous difficulty. — Wood v. State, 128 Ala. 27, 31, 29 South. 557. 86 Am. St. Rep. 71.

We find a conflict in our decisions as to Avliether definition of malice and the distinction between express malice and legal malice, as given by the court in its oral charge, is proper in a murder case. In Cribbs v. State, 86 Ala. 613, 6 South. 109, a similar charge Avas held erroneous, Avhereas in Boulden v. State, (also a murder case) 102 Ala. 86, 15 South. 341, a charge in legal principle the same Avas held to be correct. As the judgment of the loAver court must be reversed for other reasons, it suffices to say that it Avill be safer upon another trial to so define malice as not to make the definition subject to the criticism of Clopton, J., in the Cribbs Case, supra. We do not determine Avhether Ave Avould or would not reverse the judgment upon that part of the oral charge referred to, if that Avpre the pivotal point in this case.

That part of the oral charge of the court on the duty of a retreat is correct., “The laAV is that, to excuse the failure to retreat, the circumstances must be such as that the' defendant’s peril Avould have been increased thereby beyond that to Avliich he Avould have been subjected had' he stood and defended himself against his *45assailant, or were such as to impress the mind of a reasonable man that the peril would have been increased and that he was so impressed.” — Bell v. State, 115 Ala. 25, 29, 22 South. 526. The expression here used, “materially increased his danger,” embodies the same words.

Charge 2 1-2, requested by the defendant, was substantially the same as charge 5, given by the court on request of defendant. Consequently there was no error in refusing it. .

Charge 3, requested by the defendant, was properly refused, as it failed to hypothesize that the defendant did not willingly enter into the difficulty. — Gilmore's Case, 126 Ala. 22, 28 South. 595.

Charge 8 1-2, requested by the defendant, was argumentative and properly refused.

Charge 17 failed to hypothesize freedom from fault oi] the part of the defendant in bringing on the difficulty, nor did it hypothesize the imminence of the danger, nor inability to retreat, or the danger thereof.

Charge 18 was argumentative and properly refused.

Charge 20 was properly refused. Merely “brandising” an ax did not necessarily show that deceased was about to use it on defendant, or that he was in imminent peril, or that defendant had reason to believe that he was in great peril.

Charge 16 asserts a correct prinicple of law and should have been given. — Hunt v. State, 135 Ala. 2, 23 South. 329.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

All the Justices concur.