Perry v. State

62 So. 392 | Ala. Ct. App. | 1913

THOMAS, J.

— The defendant was indicted for murder in the first degree and convicted of the second degree with a sentence of 15 years. He was at the time of the commission of the offense a regular policeman in the city of Girard, where the fatal difficulty occurred. The deceased was a bailiff or constable. The state was permitted to prove, over the objection and exception of defendant, that deceased was such an officer.

Assuming that the evidence was immaterial at the time it was offered, we are satisfied from the record that no injury resulted to the defendant from its admission. — Code, § 6264. Besides, the subsequent testimony of defendant made it material, as explanatory of the occasion of the difficulty between himself and deceased, which defendant says grew out of a dispute as to whether he (defendant) should go down the street and look after a shooting scrape which had just occurred in the town; defendant testifying that deceased said that defendant should not go down there, because he (deceased) had already been. — Code, § 3328.

Defendant’s witness Conway testified that about five or six weeks before the difficulty in which deceased was killed deceased told him that he (deceased) and defendant “were at out.and that “some day the quickest man would win.” On cross-examination the solicitor interrogated the witness particularly as to when and where deceased said this, and as to his relationship with or friendship to either of the parties. At the conclusion of this cross-examination, defendant’s counsel then asked the witness the following question, “State the facts and circumstances that led up to this conversation between you and deceased”; to which question the court sustained an objection interposed by the solicitor. The question is entirely too general and far-reaching, opening too broad a field and giving too wide a latitude for answer, to warrant us in saying that the court was in error in declining to permit it. It should have been, to say the least, more specific, to render it unobjectionable.

When tAvo persons enter willingly into a difficulty, neither one for self-protection and neither one under a sudden heat of passion engendered by a blow from the other, but each to gratify his passions by inflicting injury upon the other, neither can invoke the doctrine of self-defense, and either is guilty of murder if he kills his adversary. — Sanders v. State, 134 Ala. 84, 32 South. 654; Scales v. State, 96 Ala. 75, 11 South. 121. The testimony for the defendant tended to show that deceased went Avillingly into the difficulty under such circumstances, but that defendant fought only in self-defense; while the testimony for the state tended to shoAv that defendant Avent willingly into the difficulty under such circumstances, and that deceased fought only in self-defense. If, hoAvever, both went Avillingly into it, under such circumstances for such purpose, and neither one in self-defense, either would be guilty of murder that slew the other. We find nothing improper, therefore, in the statement of the solicitor of this conclusion of law, which the bill of exceptions shows was based upon a proper hypothesis of fact and one which certain phases of the evidence, putting together that of the state and defendant, tended to support.

Several portions of the court’s oral charge were excepted to, but we quote below the only portion urged as error in the brief of defendant’s counsel, to-wit: “In addition it was defendant’s duty to retreat if be conld do so, or unless it reasonably appeared that be could not do so, without increasing bis danger.” It is true, as urged by appellant’s counsel, stated in De Arman v. State, 71 Ala. 351, that if the assault was with a deadly weapon, and was open and direct, and in perilous proximity, then the law would not require defendant to retreat. The reason, however, is simply because by retreating under such a state of facts it is clear that be Avould thereby increase bis danger. Whether such facts, or any others, relieving the necessity of retreat, existed in this case or not, was for the jury to say; the evidence being in dispute. The portion of the charge objected to is broad and is so worded as to instruct the jury that, if they found the facts such in any way that the defendant would increase his danger by retreating, then he need not retreat; hence covered the state of facts mentioned as relieving the necessity of retreat, and was therefore free from error. If defendant desired an instruction that the facts mentioned, if believed by the jury to exist in this case, would relieve the necessity to retreat, he should have requested a charge so specifying. It is too clear to need discussion that the other portion of the oral charge excepted to was free from error. It correctly states principles of law so well settled in the jurisprudence of the state as not to require citation of authority to support them. The criticism of it we regard as entirely hypercritical. It is mentioned only in the second brief filed, and not noticed at all in the first.

Charge numbered 1 requested by defendant was properly refused, since it undertook to justify on the ground of self-defense, and ignored the necessary element of freedom from fault in bringing on the difficulty. — Baker v. State, 81 Ala. 38, 1 South. 127. It was changed in verbiage to cure the criticism pronounced against a similar charge in Twitty v. State, 168 Ala. 63, 67, 53 South. 308. We do not construe that decision, however, as approving the charge if corrected, but merely as declining to give it further consideration, which was not necessary, after finding the defect pointed out.

Without considering other possible defects, it will suffice to say that charge numbered 2 was made faulty by the use of the word “then” in the following clause, “provided the defendant was then free from fault in bringing on the difficulty”; that is, after he had been assaulted with a deadly weapon. The law requires that he be free from fault at the commencement of the encounter, and, if not, he is deprived of the right of self-defense in that particular difficulty. It could be revived only by abandoning and retiring in good faith from the difficulty. If before such an abandonment of or retirement from the difficulty, if he brought it on, his adversary assaults him in such a way that he has to kill in order to save his own life, the necessity is held to have been created by his own fault in bringing on the difficulty.

Charges numbered 3 and 4 are involved, confusing, and misleading. The trial court will not be put in error for refusing such charges, as has been so often held.

We have discussed the only errors urged in brief. We find none in the record, but are of opinion the defendant had a fair trial, and the judgment of conviction is therefore affirmed.

Affirmed.