Tribble v. State, 40 So. 938

Tribble v. State

40 So. 938 | Ala. | 1906

HARALSON. J.

The same question propounded to the Avitness, McCormack: “Do you knoAV his (the deceased) character for peace and quiet in the community in Avhich he liAred?” Avas propounded by the-defendant to several other AAltn-esscs and ruled out by the court, unless the defendant on the examination of the Avitnesses as to the character of deceased, Avould embrace in the-questions, AAdiether the character of the deceased was that of a violent, dangerous, turbulent and bloodthirsty man.

*31There ivas evidence tending to show that defendant acted in self-defense, when the deceased by his conduct was threatening to take his life. Under such circumstances, more prompt and decisive measures of defense are justified, when the assailant is of known violent and bloodthirsty nature than when not. — Rhea v. State, 100 Ala. 119, 14 South. 853 ; DeArman v. State, 71 Ala. 351 ; Cleveland v. State, 86 Ala. 1, 5 South. 426 ; Jackson v. State, 77 Ala. 24 ; Storey v. State, 71 Ala. 331. In these cases, we regard the question at issue as satisfactorily settled. The court did not err in these several rulings.'

There was no error of which defendant could complain in portions of the oral charge given to the jury, numbered on the margin 5 1-2, 6, 7 and 8. — Linehan v. State, 113 Ala. 72, 84, 21 South. 497.

Nor was there error in the charge for the state indicated by the letter A. Code 1896, § 4854; Reese v. State, 135 Ala. 13, 33 South. 672 ; Mitchell v. State, 60 Ala. 26.

Charge B, given for the state, was correct. Charge 13, asked by defendant, was correctly explained by tire court. — Hale v. State, 122 Ala. 89, 26 South. 236.

Charge 3 was also free from reversible error. — Little v. State, 80 Ala. 102, 8 South. 82.

We are unable to perceive any error in charge I).

Charges b, c, d, e and li, were intended apparently to refute or offset parts of the argument of the solicitor, and on that account, if for no other reason, were not improperly refused. — White v. State, 133 Ala. 123, 32 South 139 ; Mitchell v. State, 129 Ala. 39, 30 South. 348.

Charges f, g'and r ignore all consideration as to whether defendant was free from fault in bringing on the difficulty, and this is sufficient to condemn them without reference to any other vice they may contain.

Charges i, j, k, o and n, single out and give undue prominence to the features of the evidence referred to in them.

Charge 1 ignores freedom from fault in bringing on tbe difficulty.

Charge p does not hypothesize danger, and ignores freedom from fault in precipitating the difficulty.

*32The question of whether or not the weapon was a deadly one, is generally not a question of fact for the jury, hut one of law for the decision of the court. — Sylvester v. State, 71 Ala. 17 ; and whether a particular weapon is deadly or otherwise is, in many cases, a question for the jury to be determined from the description of the weapon, the nature and locality of the wound, if any has been produced, and the circumstances proved. — Tesney v. State, 77 Ala. 33.

In this case the evidence as to the weapon was that when deceased saw defendant he cursed him and said he Avould kill him. As defendant testified, “He dreAV a large rock, Aveighing three or four pounds on me, and as he made the threats I picked up my gun from the ground and fired as quickly as possible * * * Charles (the deceased) Avas Avithin five or six steps of me Avhen he attempted to throw the rock. I bad just gotten there. I fired before he could throw the rock, but the rock avus drawn back as I fired.” Under all the circumstances detailed in the evidence, the question of the character of the Aveapon Avliether deadly or not, Avas one properly for the determination of the jury, and charge q was well refused. — Tesney v. State, supra.

Charge s ignores freedom from fault in bringing on the difficulty, and the doctrine of retreat is imperfectly stated. If defendant could have retreated safely, it was his duty to do so, and this question the charge ignores.

Charge t Avas erroneous and Avas properly refused.

Charge u gives undue prominence to ope phase of the evidence, and is argumentative. There is no error in the record, and the judgment of the court is'affirmed.

Affirmed.

Weakley, 0. J.,and Dowdell and Denson, JJ. concur.