89 Ala. 82 | Ala. | 1889
It does not affirmatively appear from the order setting a day for the trial of the defendant, and directing the summoning of special jurors and the service of a copy of the venire, &c., on the defendant, that it was made during the week in which the trial was to be, and was had. The order itself should show the day on which it was made, and not leave this fact to ascertainment from other parts of the record, or by inference from its own text. The failure of the order to affirmatively show the date on which it was entered, will not, however, avail the defendant on appeal, if, as in this case, and that of Breden v. State, from same court, it can be ascertained with certainty from the record in the court below that the order was made during the week for which the trial was fixed. With this fact thus shown, there was no error in directing that the special jurors “draion and ordered summoned,''’ with the petit jurors organized “for the present week” of the court, should constitute the venire for defendant’s trial, and that the sheriff should serve a copy of such venire on the defendant, one entire day before the trial. Acts 1886-7, p. 151; Breden v. State, 88 Ala. 20.
The objection of defendant to going into trial, his plea in abatement, and demurrer to the indictment, all of which proceeded on the assumption that the indictment was against “ Forrest Wathims,” instead of “Forrest Watkins,” and that it employed the word “oforethought” instead of the word “aforethought,” were properly over-ruled. An examination of the original indictment, which accompanies this record under an order of the trial court, demonstrates that the assumption is not supported by fact. We have no difficulty or hesitancy in reaching the conclusion, from an inspection of the paper, that the indictment charges that “Forrest Watkins unlawfully and with malice aforethought killed James York,” &c.
Deceased was on his mule when shot. The precise point at' which he fell from the mule became a pertinent inquiry, as tending to fix the relative positions of the parties at the moment of the fatal shot, as to which the evidence was conflicting. A witness who arrived on the scene soon after the shooting, indeed before the wounded man was taken from the ground, was allowed, against defendant’s objection, to state that he saw, two or three steps from where York was lying,
Not only were the relative positions of the parties at the time of the shooting pertinent to the issues in the case, but the position or attitude of the person of deceased with reference to the defendant at the time of the shot became a matter of relevancy and controversy in the case. In this connection, it was clearly competent for the prosecution to put in evidence an overcoat, shown to have been worn by deceased when he was shot, through which several bullets had entered the body of deceased.—Holley v. State, 75 Ala. 14 What the solicitor did or said in connection with introduction of the overcoat in evidence, is not presented for our consideration. The court instructed the jury at the time, that what the solicitor said and did with respect to the coat, was not evidence, and should not be considered by them; the solicitor withdrew his remarks, and no exception whatever in this connection was reserved.
There is evidence in this record which tends to support every hypothesis of the charge given at the request of the State. Several witnesses testified, that York rode up to the gate of the defendant, and pulled out his pistol, and pointed it at said defendant, saying, “Damn you, I am going to kill you;” or words to that effect. At that time, defendant was in the yard of his house, and unarmed; but he went into the house, got his gun, came back with it in his hand, and shot York. The charge was, therefore, not abstract. It asserts that, on this state of facts, if believed, the defendant could not invoke the doctrine of self-defense. We do not question the soundness of this proposition. One assaulted in his house, need not flee therefrom. But his house is his castle only for the purposes of defense. It can not be turned into an arsenal for the purposes of offensive effort against the lives of others. It is a shelter, but not a sally-port. A man may stand his ground there, and kill all comers who are, without fault on his part, about to take his life, or to do him great bodily harm. But, if he leaves its shelter, to encounter a danger beyond its precincts, he is in no better attitude, before the law, than if he had come from any other place, and voluntarily entered upon a combat, from the peril of which he was secure but for his own act. It is immaterial that, after he has armed himself, and emerged from his
Of the charges asked by defendant and refused, the first, second, fifth, sixth and seventh were mere arguments, in declining to give which the Circuit Court, as has been very frequently declared by this court, commits no error.—Hussey v. State, 86 Ala. 34; Hawes v. State, 88 Ala. 38; Rains v. State, Ib. 91; Riley v. State, Ib. 193; Carrington v. L. & N. R. R. Co., Ib. 472; Kirby v. State, ante, p. 64.
Charge number three was properly refused, because it was abstract, in that there is no evidence' in the case to which the principle which relieves a party assaulted in his own house from the duty of retreat can be applied. It was also bad, in that it pretermits all inquiry as to the fault of defend-' ant in bringing on the difficulty. This charge is probably open to further objections, on the ground of being misleading, or abstract, but those pointed out will suffice to justify the action of the trial court in refusing it.
Charges four and eight were bad, in that they pretermitted all inquiry as to the fault of defendant in bringing on, or participating in the fatal difficulty. That he was in fault in not remaining in his house, the evidence left no doubt. The charge would have authorized his acquittal on the ground of self-defense, notwithstanding he brought on the difficulty by unnecessarily coming out of his house.
Charge eight asserts that, if a man be assailed in his yard, and can avoid the necessity of killing by retreating into his house, he is not required to do so, but may stand and kill. This is not the law. The charge was properly refused.
The judgment of the Circuit Court is affirmed.
