Chaney v. State

59 So. 604, 178 Ala. 44, 1912 Ala. LEXIS 392

• Court: Supreme Court of Alabama
• Decided: June 29, 1912
• Status: Published

Opinions

ANDERSON, J.

This is the second appeal in this case, and the evidence as to what actually happened at the time of' the killing is practically the same as upon the former trial.

The state’s evidence shows that the deceased was in the defendant’s poolroom playing pool or billiards, and had a cue in his hand, also a ball, which he had picked up after it bounced off the table; that the defendant, without saying a word, shot him; and that the deceased at the time was making no effort whatsoever to strike or injure the defendant. If this theory was true, the defendant was guilty of murder.

The defendant’s evidence, like the state’s, shows that there was no fuss, no word was spoken, and that the defendant did nothing, prior to the shooting, that could possibly provoke the deceased, except to enter his own place of business. The defendant’s evidence, however, unlike that of the state on this point, showed that, while the defendant was standing in his poolroom, the deceased drew a billiard ball on him, and held it in a throwing position when he shot him. If, therefore, the jury entertained a reasonable doubt as to whether or not the defendant acted upon the well-grounded and reasonable belief that it was necessary to shoot to save himself from great bodily harm, or from death, or that he shot before such an impending necessity arose, then this was such a doubt as would authorize an acquittal. The defendant was in his place of business, and did not have to retreat. Nor did the charge have to hypothesize freedom from fault in bringing on the difficulty, as the undisputed evidence showed that the defendant did nothing to provoke the deceased before shooting. The only issue or conflict in the evidence was whether or not the deceased was making an effort to strike the defendant with the ball before the defendant shot, and which said fact was hypothesized in charges 14 and 16, refused the defendant. These charges are practically the same as charge 7, held good upon former appeal in this case, and they should have been given. — Chaney v. State, 172 Ala. 368, 55 South. 801; Harris v. State, 96 Ala. 24, 11 South. 255. A similar charge was held to have been properly refused in the case of Gaston v. State, 161 Ala. 37, 49 South. 876, because it pretermitted the defendant’s freedom from fault in bringing on the difficulty; but it there appeared that the defendant addressed some remarks to the deceased when he came out into the yard and before the shooting, and which a majority of the court held Avas sufficient to make freedom from fault a question for the jury. In the case at bar, as in the Harris Case, supra, there Avas no evidence of a difficulty, or that defendant did anything to provoke one, other than firing the shots. He had the right to go into his place of business Avithout being at fault in this respect, and he Avas under no legal duty to retreat therefrom, and the charges did not have to hypothesize the duty to retreat or freedom from fault; and the defendant was entitled to an acquittal under the postulates of charges 14 and 16, if believed by the jury, or if they entertained a reasonable doubt as to the existence of the facts therein hypothesized. For similar reasons, charge 2, requested by the defendant-,, should have been given.

Charge 3, requested by the defendant, should have been given. It has been repeatedly approved by this court.- — Bailey v. State, 168 Ala. 4, 53 South. 296, 390; Neilson v. State, 40 South. 221; Bryant v. State, 116 Ala. 445, 23 South. 40.

Charge 18, refused the defendant, should have been-given. This charge, with the elements of freedom from fault and retreat embraced, was approved in the case of Bluett v. State, 151 Ala. 50, 44 South. 84. As heretofore stated, it did not have to hypothesize freedom from fault or retreat. It may be that the charge says “many threats,” when it was intended as “any threats”; but this did not justify its refusal, or render it abstract or an invasion of the province of the jury, as there was evidence, undisputed, that the deceased made many threats against the defendant.

Charge 11, refused the defendant, pretermits an honest, reasonable, or bona fide belief by the defendant that he was' in danger. The defendant may have thought that Snider was going to throw the ball, yet he may not have had the honest, reasonable, or bona fide belief that he was in danger of losing his life, or of sustaining serious bodily harm.

The other charges refused the defendant were either bad, abstract, or else duplicated by given charges. Nor was there reversible error to so much of the oral charge as was excepted to by the defendant.

There are many objections to the evidence; but we do not find that the trial court committed reversible error in any of the rulings upon the same. Many of the objections related to an attempt to enter into the details of a former difficulty between the parties, and to the age and condition of defendant’s family and the conduct of deceased towards the defendant’s wife and child, and which was foreign to the issue involved. These and the other exceptions to the rulings upon the evidence form no basis for reversible error, and it would be useless to incumber the books with a rehash of elementary rules of evidence.

The judgment of the city court is reversed, and the-cause is remanded.

Reversed and remanded.

Dowdell, O. J., and Simpson, Mayfield, and Sayre, JJ., concur. McClellan and Somerville, JJ., dissent,