97 So. 234 | Ala. Ct. App. | 1923
Lead Opinion
This is the second appeal in this case. White v. State,
The indictment charged the defendant with second degree murder. On the former trial he was convicted for manslaughter in the first degree, but the judgment of conviction was reversed by this court (White v. State, supra), and the cause remanded.
On this trial in the court below the defendant filed a plea of former acquittal of murder in the second degree; the plea being confessed by the state, the trial proceeded upon the charge of manslaughter in the first degree.
Throughout the entire trial no exception was reserved to any ruling of the court. The refusal of several written charges requested by defendant are relied upon to effect a reversal of the judgment appealed from. The given and refused charges appear in the record without number or other designation. In the preparation of records the clerk should designate by number or letter all given or refused charges in order to avoid confusion and uncertainty. We have so numbered the charges in this record for the purposes stated.
Refused charge numbered 1 properly states the law, but its refusal was not error, as the oral charge of the court fully covered the proposition of law embraced in this charge.
Refused charges 2 and 4 also state correct propositions of law, but given charge 7, covers the same point and is practically identical with these charges, and therefore their refusal was without error.
The word supposition renders refused charge 3 bad. In Smith v. State,
"Moreover, the charge was properly refused, for the use of the word `supposition.' All cases in this state, holding that the refusal of such a charge is erroneous, are hereby overruled." Dawson v. State,
Refused charges 5 and 6 were each the general affirmative charge, and under the oft-announced rule that the general charge should never be given, when there is any evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it, we must hold that these charges were properly refused. While it cannot be denied that the testimony against this defendant was very weak and inconclusive, yet there was some testimony adduced upon this trial from the son and son-in-law of deceased, which made it a question of fact for the determination of the jury. Under this testimony the court could not as a matter of law direct a verdict for defendant.
The defendant offered evidence tending to show: That he was traveling the public road, alone in a buggy, and was on his way to his home about 2 1/2 miles distant. That he was overtaken by an automobile which was occupied by deceased, Pope Horton, and his son Hobson Horton, and also Dr. M.L. Casey, son-in-law of deceased. That in response to the blowing of the horn on the automobile he (defendant) turned out of the public road in order to let the car pass, and at that time did not know who was in the car. That the car ran by defendant and ran around the head of his horse, and whirled around across the road and stopped. That Horton, deceased, got out of the car with a shotgun in his hand, and he was very pale. And the defendant testified: *334
"I seen that he intended to shoot me. I said to Mr. Horton not to shoot me, and I hadn't more than said that till he raised his gun and fired and the load from the shotgun came right across and it tore a hole in my shirt — a great large hole — and hit my side and tore a strip off my side. When the shooting commenced I was back a little behind the car."
That Hobson Horton also shot him in the neck with a pistol in close proximity, etc. That he never fired his pistol until after he had been fired upon and hit. That the deceased never said anything to him, but commenced to fire at him as soon as he stepped from the car. There was other evidence of like import, tending to show these facts. On this evidence the appellant asked the following charge:
"I charge you, gentlemen of the jury, that if you find from the evidence in this case that the defendant was going quietly down the road, and was free from fault in bringing on the difficulty, and if the Hortons and Casey cut off his way of escape and opened fire on him, then he had the right to fire in self-defense."
This charge was practically upon the effect of the testimony above quoted, and also other similar testimony in the case, and was peculiarly applicable to the testimony bearing upon the question of the imminent danger or peril of the defendant at the time he returned the fire; also upon the fact that there was no reasonable mode of escape, it having been apparently cut off by the attacking party; and the charge specifically postulates the freedom from fault on the part of the defendant. We think this charge should have been given under these conditions. While, as stated, the charge is practically upon the effect of the testimony, the law is that the court may charge upon he effect of the testimony when required to do so by one of the parties. Code 1907, § 5362. The charge was not abstract, as there was some evidence adduced upon this trial, if believed by the jury under the required rule, to sustain the charge as requested. We are of the opinion, as applied to the evidence in this case, it was error to refuse this charge.
Charge 8, refused to defendant, pretermits the question of necessity to kill — that is, it omits the element of self-defense relating to imminent peril or danger to defendant at the time of the shooting; and for this reason, there was no error in its refusal.
For the error designated, the judgment appealed from is reversed, and the cause remanded.
Reversed and remanded.
Addendum
Affirmed on authority of Ex parte State ex rel. Davis, Attorney General,
