Perry v. State

94 Ala. 25 | Ala. | 1891

STONE, C. J.

— The law must and does place a high estimate on human life, and the circumstances must be exceptional to excuse its being taken, otherwise than in punishment of some crime which the law itself has made capital. Hence it is that, when life has been taken, not in obedience to some judicial sentence, the law raises the presumption that it was feloniously taken, unless the testimony which proves the killing, proves also the excuse or extenuation. Hence it is that, when a homicide is proved, and the criminating proof fails to disclose the excuse or extenuation, the law-imputed, felonious guilt attaches, and the burden is cast on the defendant to rebut or repel such imputation. Hence it is that one who begins, or provokes a difficulty, can not invoke the doctrine of self-defense, unless he clearly retires from the combat, and, by word or deed, manifests a desire and intention to be at peace. Hence it is that, when one is menaced or assailed, not in his own dwelling, he must escape by flight, if he cari do so safely, and without increasing his apparent danger. — Clements v. State, 50 Ala. 117 ; Roberts v. State, 68 Ala. 156; Sylvester v. State, 71 Ala. 17; De Arman v. State, Ib. 351; Ex parte Warwick, 73 Ala. 57; Wharton v. State, Ib. 366; Ex parte Brown, 65 Ala. 446; Bain v. State, 70 Ala. 4; Ingram v. State, 67 Ala. 67; Jones v. State, 76 Ala. 8; Cary v. State, Ib. 78.

The defendant and the' deceased were, each of them, servants in the employment of the same person — the sheriff of the county. Defendant was hostler. Aside from the testimony of the defendant himself, there is a want of clearness of proof as to the origin of the quarrel. One phase of the proof was, that the deceased first insulted the defendant with approbrious words, and with threats; that thereupon he, deceased, went into the sheriff’s office, and came out towards where the defendant was, having in his hand the sheriff’s pistol, and was in this condition advancing on the defendant, who was in his proper place in front of the stable, harnessing and hitching up his employer’s horse; that he advanced, with pistol in hand, near to the defendant, but on the opposite side of the horse, and while pushing the horse’s head aside, the defendant snatched up his gun and fired, killing him. This phase of the testimony tends to show that, about the time deceased went after the pistol, defendant went a short distance, and returned with his gun, which, at the suggestion of a by-stander, he set down by the buggy, and returned to the service of harnessing the horse; and that he was thus employed when the deceased approached on the opposite side of the horse. • This phase of the testimony leaves it a question for the jury to determine, whether the deceased first went for the pistol, or indicated such intention, or whether defendant first went for his gun. The testimony was that deceased was a violent and dangerous man. We have given only one phase of the testimony. Other testimony gave a different version. It is the province of the jury to determine the facts.

Certain legal principles become important, it the foregoing phase of the testimony be found to be true. The difficulty taking place in an open space in front of the stable, that place was not entitled to the immunities and legal privileges the law accords to the actual or business residence. It was the duty of the defendant, if he was approached in a dangerous and threatening manner, to l’etire and escape from the conflict, if he could do so without danger to himself If by flight he would apparently increase the danger to his own life, or if by the attempt he would apparently leave himself exposed to grievous bodily harm, from which he could not probably escape by flight, and if he was free from fault in bringing on the difficulty, then he could stand his ground and defend himself, even at the expense of his assailant’s life. The law does not require that one who is without fault, shall lose his own life, that he may thereby spare that of his assailant. We are not commanded to love our neighbor better than ourself.

There are other aspects of this question which the phase of the testimony we are considering presents. The testimony is undisputed, that deceased was a man of violent and dangerous character. Now, while that fact did not of itself justify the taking of his life, or even palliate the offense, yet it was permissible to make proof of it, and such proof should be weighed by the jury in determining the extent of danger, if any, to which defendant was exposed, and his means and opportunity of safe escape therefrom by flight. “A demonstration, or overt act of attack, made by such a one, may afford much stonger evidence that the life or limb of the person assailed was in imminent peril, than if performed or made by one of an opposite character or disposition. Hence it would reasonably justify a resort to more prompt measures of self-preservation.” — Roberts v. State, 68 Ala. 156.

The testimony tends to show that defendant was in his proper place of business. He had a right to be thefe, if this testimony be true. He was not required to leave his place of business, upon a mere belief or apprehension, or even threat, that deceased contemplated doing him grievous bodily harm. And if threatened by words or hostile demonstration, he violated no law if he prepared himself for defense, and only for defense, against such threatened, dangerous attack. His duty to leave his employment and escape by flight, if apparently practicable, would not arise in such conditions on mere apprehension of attack. He could safely prepare, and await developments. If, however, when approached menacingly, not being within his dwelling, there was apparently reasonable opportunity for safe escape by flight, theii it would be and was his duty to so escape. This, because of the law’s imperative command, that human life shall not be taken, unless there is a present necessity, real or apparent, to strike in defense of one’s own life. All these defensive rights, however, are hinged on the condition, that the party resorting to them must be free from fault in provoking, or bringing on the difficulty.

Of the charges asked by defendant, the first was abstract, and was rightly refused on that account. Charges 2, 3, 4, and 5 pretermit all inquiry of defendant’s fault in bringing on the difficulty, and for this reason were faulty. Charges 6 and 1 omit all inquiry of reasonable means of escape by flight, and for that reason were rightly refused. Charge 8 postulates, as a fact, that defendant did no act, and made no demonstration of an intention to use the gun, until he was forced to by the act of the deceased. One phase of the testimony may have justified this, but the whole testimony taken together did not. Charge 9 ought to have been given. Charge 10 would be faultless, if the words “after he so returned” were omitted. So, if the word “reasonably” had been omitted from the latter part of charge 11, it would be free from error.

He versed and remanded.