Hubbard v. State

64 So. 633, 10 Ala. App. 47, 1912 Ala. App. LEXIS 460

Opinion

WALKER, P. J.

For a structure or an inclosed parcel of ground which is separate and apart from one’s dwelling to be regarded as within his curtilage, it must be customarily used in connection with the dwelling. It is not brought within the curtilage by all the occupants of the dwelling making use of it on some special occasion or in exceptional circumstances. — Lee v. State, 92 Ala. 15, 9 South. 407, 25 Am. St. Rep. 17; Cook v. State, 83 Ala. 62, 3 South. 849, 3 Am. St. Rep. 688; Ivey v. State, 61 Ala. 58; 8 Am. & Eng. Ency. of Law (2d Ed.) 527. This may be true as to an outhouse on the premises of another. There was evidence tending to prove that the garden mentioned in written charge 1 requested by the defendant belonged to a residence other than the defendant’s, and situated more than 100 yards from it. The refusal to give the charge was justified by the consideration that in view of the evidence in the casé, it might have been understood as asserting that the facts that the defendant was in possession of the garden, though it was not used in connection with his residence, and that he and his family occasionally, not habitually, made use of the privy in it, had the effect of bringing the garden within the defendant’s curtilage. Written charge 2 refused to the defendant is subject to a similar criticism.

Written charge 3 was properly refused, as it was so expressed as to be capable of misleading the jury to the conclusion that they would not be authorized to convict the defendant if they had a reasonable doubt of the truth of a statement as to a material fact testified to by any one of the state’s witnesses. Manifestly the existence of snch a doubt should not stand in the way of a conviction if, upon a consideration of all the evidence, the jury are convinced beyond a reasonable doubt of the defendant’s guilt.

Without inquiring if written charge 4 was otherwise faulty, the court’s refusal to given it may be justified because, as applicable to the evidence in the case, it might have been understood as asserting that, on the hypothesis stated, one is justified in taking the life of another, though there is no real or apparent necessity of his doing so in order to defend himself from death or great bodily hann.

In the framing of written charges 5 and 6 use was made of a charge which was passed on in the case of McEwen v. State, 152 Ala. 38, 44 South. 619, and the faults in that charge which were there pointed out were avoided. Each of those charges was a correct statement of propositions applicable to a phase of the evidence in the case, and we discover no ground upon which the court’s refusal to give either of them can be justified.

The refusal to give defendant’s written charge 7 was error.- — Roberson v. State, 175 Ala. 15, 57 South. 829.

Charge 9 was properly refused, as it was not a necessary conclusion from the evidence in the case that the. defendant was within his curtilage at the time of the killing.

The court was justified in its action as to each of the other charges refused to the defendant because of some fault in it, or because the propositions stated had been substantially covered in instructions given at the defendant’s request.

Because of the errors above mentioned, the judgment must be reversed.

Reversed and remanded.