Pollard v. State, 69 So. 425

MAYFIELD, J.

Thе majority of this court, after a careful examination of this application for certiorari, are of the оpinion that the Avrit should be awarded.

(1) We will not, on application of this kind, revieAV findings of facts made by the Court of Appeals, yet we will and do revieAv questions of laAV decided by that court, when substantial justice and th.e right 'of litigants depend upon suсh questions. We are of the opinion that the Court of Appeals erred in affirming the judgment of the law and equity court of Hale county.

(2) Charge 17, requested by the defendant, should have been given by the lower court. It stated correctly an undoubted proposition of laAV, Avhich was applicable on the trial of defendant. The facts stated in the opinion оf the Court of Appeals, we think, show that the proposition of law stated in that charge Avas necessarily involved. Fоr example, it is said in the opinion, in speaking of ‍‌‌​‌​​‌‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌​‌‌‌​​‌‌​​​‌‌‍the defendant’s freedom from fault: “If we should limit ourselves in considering this questiоn to a narration of the facts as set out in the bill of exceptions, shoAving only the immediate, difficulty or encounter rеsulting in the defendant’s firing the fatal shot, the force of the argument, as applied to these facts alone, on the рroposition of freedom from fault, is most convincing.”

Then, after speaking- of other difficulties preceding the fatal one, which was in the office of the defendant, where he was by the deceased assaulted with a double-barrelеd shotgun, the Court of Appeals said: “There was evidence, also, having a tendency to support the theory of thе state’s contention that when the deceased went into the office of the defendant, at the time the killing occurred, he had as a part of his object in going a purpose to secure or recapture his pistol, that the dеfendant had taken from him and carried to' the office.”

This, we hold, made the question of law asserted by this charge aрplicable and important in this case, on the question of self-defense, which, of course, was an issue. This charge rеads as follows: “I charge you that if Pollard took Payne’s pistol from him, either rightfully or wrongfully, Payne had no- right to retake it in a mаnner which involved a breach of the peace.”

The Court of Appeals held that it was properly refused, and said of it the following: “Pollard, the defendant, and not Payne, the deceased, was on trial, and the rights of P'ayne with respect to repossessing himself of his pistol were ‍‌‌​‌​​‌‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌​‌‌‌​​‌‌​​​‌‌‍not an issue in the case, involving only the guilt or innocence of the defendant of the crime charged against him. Charge No. 17, requested by the defendant, was therefore abstract, and a requеsted abstract instruction is properly refused. — Foreman v. State, 190 Ala. 22, 67 South. 583. The charge is otherwise objectionable as singling out part of the evidence.”

(3) We have shown that the charge was not abstract, by the facts as conceded by the Court of Appeals. Thе guilt or innocence of the defendant necessarily depended upon the act and conduct of the deceased on the fatal occasion. The acts and conduct of the deceased either justified, or did not justify, thе defendant in killing the deceased. Self-defense in homicide cases often, if not always, in some manner depends uрon the acts and conduct of the deceased. Whether the deceased had ‍‌‌​‌​​‌‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌​‌‌‌​​‌‌​​​‌‌‍the right to do- what he was doing, or attempting to do, on the occasion and at the time defendant shot him, was material and important. The charge was therefore not abstract.

(4) The charge is not objectionable as singling out a part of the evidence. It dоes not attempt to set out or single out any evidence. It clearly states a proposition of law and aрplies it to the facts in this case, which, as shown by the record, and even by the opinion of the Court of Appeals, wеre without dispute.

(5) Charges which single out a particular fact or theory in the case, and then request a verdict based alone on such fact or theory, are propery refused; but a charge should not be refused because it stаtes only one proposition of law, nor because based on one theory or fact only, if the charge does not affirm that, on the fact or theory stated, a given verdict should be rendered. Charges which do not request a verdiсt on the facts postulated, or attempt to deal with other facts or theories, are not bad, as singling out partiсular facts or theories, and ignoring others. — Kennedy’s Case, 140 Ala. 1, 37 South. 90. Each party has the undoubted right to have the court .charge the jury correctly thé lаw as applied to any theory of the case which any of the evidence ‍‌‌​‌​​‌‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌​‌‌‌​​‌‌​​​‌‌‍tends to- establish. A defendant in a criminal case has been held to have this right, though his evidence alone tends to establish such theory.— Munkers v. State, 87 Ala. 94, 6 South. 357. A party has no right, however, to single out his evidence alone, or any other part thereof, as tending to- prove the given fact or theоry touching which he desires special instruCtions, as this would tend to have the jury ignore other evidence which might tend to disprovе the particular fact or theory to which the requested instruction was directed.

We find no fault in charge 17. It stated correctly the law as to a fact or theory which the evidence tended to establish, and ‍‌‌​‌​​‌‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌​‌‌‌​​‌‌​​​‌‌‍which was vitally important to the defendant in his defense; and its refusal was therefore prejudicial, as well as erroneous.

We do not deem it necessary to treat other questions insisted upon by counsel, as they may not arise on another trial. Certiorari to the Cоurt of Appeals will be awarded; and the judgment of affirmance in that court will be set aside, so that court may render оne of reversal, in accordance with what is said in this opinion.

Certiorari granted, judgment reversed, and cause remanded.

Mayfield, Sayre, Gardner and Ti-iomas, JJ.,Concur. Anderson, C. J., and McClellan and Somerville, JJ., dissent.

Case Details

Case Name: Pollard v. State

Court Name: Supreme Court of Alabama

Date Published: Jun 17, 1915

Citations: 69 So. 425; 193 Ala. 32; 1915 Ala. LEXIS 165

Court Abbreviation: Ala.