Abernathy v. State

Supreme Court of Alabama

Abernathy v. State

129 Ala. 85

CourtSupreme Court of Alabama

DecidedNovember 15, 1900

StatusPublished

Cited by4 cases

This text of 129 Ala. 85 (Abernathy v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abernathy v. State, 129 Ala. 85 (Ala. 1900).

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Opinion

SHARPE, J.

That the. door of defendant’s residence was broken and battered several weeks after the homicide was not a circumstance which could aid in determining the character of the homicide and was plainly irrelevant to the issue tried. In criminal cases, the presumption of injury which ordinarily arises from the admission of incompetent evidence will be held to apply wherever the court cannot be satisfied that the defendant was not prejudiced by such admission.—Maxwell v. State, 89 Ala. 150; Code, § 4333. The evidence referred to may have led to the inferences that the de[89]*89fendant or the house she kept was of a disorderly character or to other inferences anything but favorable to defendant’s cause. That the jury was not influenced to her prejudice by the irrelevant evidence is not discernible and, therefore, the error of its admission carries with it the presumption of injury and must work a reversal of the judgment.

Charge 1 requested by defendant is in form the assertion of abstract proposition, applicable to all cases where a felonious and forcible assault is committed by the person killed upon the slayer without regard to the place or circumstances of the occurrence. As such it is incorrect because it takes no account of the principle that in homicides occurring in personal encounters the slayer though attacked with felonious intent, to be excused of killing his adversary must be free from fault in bringing on the difficulty, (Wilkins v. State, 98 Ala. 1) ; and the charge also pretermits the duty of retreat which in many 'cases and according to circumstances, the law imposes on one attacked elsewhere than in his habitation.—Storey v. State, 71 Ala. 338; Evans v. State, 109 Ala. 11; Carter v. State, 82 Ala. 13.

The facts hypothesized in refused charge 2 would .not alone have given the defendant the right to kill the deceased as is asserted in the charge.

There was no error in the part of the oral charge excepted to. If the oral charge was not sufficiently full and explicit, the remedy was by requesting further instructions.

IleA'ersed and remanded.

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SHARPE, J.

That the. door of defendant’s residence was broken and battered several weeks after the homicide was not a circumstance which could aid in determining the character of the homicide and was plainly irrelevant to the issue tried. In criminal cases, the presumption of injury which ordinarily arises from the admission of incompetent evidence will be held to apply wherever the court cannot be satisfied that the defendant was not prejudiced by such admission.—Maxwell v. State, 89 Ala. 150; Code, § 4333. The evidence referred to may have led to the inferences that the de[89]*89fendant or the house she kept was of a disorderly character or to other inferences anything but favorable to defendant’s cause. That the jury was not influenced to her prejudice by the irrelevant evidence is not discernible and, therefore, the error of its admission carries with it the presumption of injury and must work a reversal of the judgment.

Charge 1 requested by defendant is in form the assertion of abstract proposition, applicable to all cases where a felonious and forcible assault is committed by the person killed upon the slayer without regard to the place or circumstances of the occurrence. As such it is incorrect because it takes no account of the principle that in homicides occurring in personal encounters the slayer though attacked with felonious intent, to be excused of killing his adversary must be free from fault in bringing on the difficulty, (Wilkins v. State, 98 Ala. 1) ; and the charge also pretermits the duty of retreat which in many 'cases and according to circumstances, the law imposes on one attacked elsewhere than in his habitation.—Storey v. State, 71 Ala. 338; Evans v. State, 109 Ala. 11; Carter v. State, 82 Ala. 13.

The facts hypothesized in refused charge 2 would .not alone have given the defendant the right to kill the deceased as is asserted in the charge.

There was no error in the part of the oral charge excepted to. If the oral charge was not sufficiently full and explicit, the remedy was by requesting further instructions.

IleA'ersed and remanded.

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129 Ala. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abernathy-v-state-ala-1900.

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