Langham v. State

68 So. 504, 12 Ala. App. 46, 1915 Ala. App. LEXIS 122

• Court: Alabama Court of Appeals
• Decided: January 14, 1915
• Status: Published

Opinions

BROWN, J.

The necessity that will excuse the taking of human life must not have been produced or invited by the wrongful act or word of the slayer. He must be mindful of his acts or conduct which are likely to produce a deadly combat; and, if his acts or conduct show a willingness to enter into- combat, or if his acts or words in any way invite it, in the eye of the law he has produced a necessity for slaying his adversary, and he cannot invoke the doctrine of self-defense. It is not enough that he is reasonably free from fault. He must-be entirely free.—Brewer v. State, 160 Ala. 66, 49 South. 336; Reese v. State, 135 Ala. 13, 33 South. 672; Stallworth v. State, 146 Ala. 8, 41 South. 184.

The evidence is without conflict that the defendant-killed the deceased by shooting him with a pistol; that the fatal rencounter occurred on Sunday evening at Sullivan’s gin near Castleberry; and the evidence tended to show that immediately before the fatal shots were fired the deceased struck the defendant with a knife-closed in his hand, inflicting a slight wound on the defendant’s face. Just before the difficulty occurred the defendant was driving along the road in the direction of Castleberry, and passed the deceased and the witness. Thornton standing on the side of the road, when deceased accosted the defendant, saying to him that he wanted to see him a minute. The defendant testified that at the time deceased spoke to him he did not see deceased and Thornton, but after deceased spoke he looked and saw them standing on the side of the road, and that he replied to deceased that he could not stop until he got across the bridge, that he would wait for him after he crossed the bridge, and that he stopped and waited for the deceased, who came on up behind the buggy, and invited him off to one side to speak to him a minute, and that deceased and the defendant walked off to- one side toward Mr. Sullivan’s gin, where they talked about half a minute. The evidence tends to show that the subject of this conversation was some “talk” that the defendant had had about the sister of the deceased, and the deceased was demanding a retraction of what the defendant had said about deceased’s sister, or proof that defendant had not made such statements; that thereupon the defendant and the deceased returned to the defendant’s buggy, where Thornton and several other persons had assembled, and there a wordy altercation took place between the defendant and the deceased, and deceased struck the defendant on the face knocking him. down against the buggy, and the defendant drew his pistol and fired. The evidence further tends to show that, as a result of a rivalry between defendant and. the deceased in their attention to a young lady whom the defendant afterward married, bad blood existed between them, and the defendant proved that a short time before the killing the deceased told Jim Burch that he (deceased) “would kill the damn son of a bitch” (referring to the defendant), and that this threat was communicated to the defendant a short time prior to the killing.

Communicated threats made by the deceased against the defendant, in connection with the evidence tending; to show that deceased was a man of known violent and bloodthirsty nature, were admissible as a basis for more prompt action on the part of the defendant to -defend himself against a felonious assault threatened by overt act or hostile demonstration; and in such cases the law recognizes the right of one so threatened to act more promptly and on slighter overt act or demonstration than it would in the absence of such proof.—Beasley v. State, 181 Ala. 32, 61 South. 259; Jackson v. State, 78 Ala. 471; Storey v. State, 71 Ala. 330.

This principle, however, is confined exclusively to defensive measures, and it furnishes no excuse or palliation for aggressive action in the absence of an overt act or demonstration sufficient to impress the mind of a reasonable man that a felonious assault is threatened, and has no application where the necessity to defend against such assault has been produced by wrongful act, word, or deed, on the part of the slayer.-Beasley v. State, supra; De Arman v. State, 71 Ala. 355. The threat of the deceased to take the life of the defendant, in connection with the ill will or bad blood that existed between them, and the nature of the deceased as a violent, blood-thirsty person, imposed upon the defendant the duty of being extremely cautious in his conduct toward the deceased, and the doing of any act by him under these circumstances that contributed to bringing on a difficulty would deprive him of the right of self-defense.—Reese v. State, 135 Ala. 13, 33 South. 672; Stallworth v. State, 146 Ala. 8, 41 South. 184.

In view of the threat of the deceased, and the evidence tending to show bad blood or ill will between the deceased and the defendant, in connection with the other evidence in the case, it was a question for the jury as to whether or not the defendant was at fault in not disregarding the request of the deceased for him to stop, and in stopping and engaging in a wordy altercation with the deceased, which brought about the fatal ren-counter resulting in the killing. The application of these principles justifies the action of the court in refusing charge 2 requested by the defendant. This charge ignored the evidence tending to show that the defendant was not entirely free from fault. The case of Harris v. State is easily differentiated from this case. In that case the only evidence that the defendant was at fault in bringing on the difficulty was a mere “inference” from the tendency of the state’s evidence toward showing that he fired the first shot after the door was opened, and charge 6 in that case does not ignore this inference, but submits the question to the jury, and instructed them that, if they had a reasonable doubt as to whether the defendant shot before the impending necessity arose, the defendant was entitled to that doubt; the burden of proof on that issue being on the state. The court said: “The defendant being under no duty to retreat, and there being no evidence that he was at fault in bringing on the difficulty, other than by way of inference from that tendency of the state’s evidence toward showing that he fired the * * shot after the door was opened, he should not have been convicted, if the jury from all the evidence entertained a reasonable ‘doubt whether he acted upon the well-grounded and reasonable belief that it was necessary to> shoot and take the life of Lovelace to save himself from great bodily harm or * * * death, or that he shot before such impending necessity arose.’ If the jury could not say beyond all reasonable doubt which of these states of fact in reality existed, they could not say with that near approach to certainty which the law requires that he acted under circumstances which did not justify him in taking life; the onus of proving the circumstances, in so far as they bore upon the question of defendant’s fault in bringing on the difficulty, being on the prosecution.”-Harris v. State, 96 Ala. 27, 11 South. 257.

In the case of Beasley v. State, 181 Ala. 28, 61 South. 259, there was no evidence tending to show that the defendant was at fault, and it was on that theory and the further theory that there were tendencies in the evidence that White made a murderous assault on Beasley before he fired the shot that killed White that the charge in that case was held good.

A positive intention to kill is not an essential element of manslaughter in the first degree. It is enough that the slayer voluntarily sets in motion unlawful force from which ordinarily, in the usual course of events, death or great bodily harm may result; and, if death ensues, the slayer is guilty of manslaughter in the first degree.—Fowler v. State, 161 Ala. 1, 49 South. 788; Lewis v. State, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75; Reynolds v. State, 154 Ala. 17, 45 South. 894; Smith v. State, 154 Ala. 34, 45 South. 626; Fowler v. State, 155 Ala. 28, 45 South. 913. This principle justified the court in the refusal of charge 4 requested by the defendant.

Charge 17 invades the province of the jury, in that it ignores the evidence tending to show that the defendant was not free from fault. Charge 18 is subject to the same criticism as charge 17, and, in addition, it gives undue prominence to parts of the evidence. The only other charge refused to the defendant was the affirmative charge, and, under the evidence in the case, that Avas properly refused.

The defendant’s wife was not • a competent witness, and could not testify in his behalf.—Newman v. State, 160 Ala. 102, 49 South. 786; Salter v. State, 92 Ala. 68, 9 South. 550; Holley v. State, 105 Ala. 100, 17 South. 102.

The defendant testified on cross-examination that on Saturday night before the killing on Sunday he stayed at his uncle’s near London, that he went from there to town to Mr. Baggett’s, and that he spent the day in and around Castleberry (the killing occurring before he returned to his home); and there was evidence tending to show that the wéap-on used was a pistol which he drew from his pocket after the deceased had assaulted him. In one' of his arguments to the jury, which the record does not disclose; the solicitor made the following statement: “The presumption is that the defendant started out on Sunday morning with a pistol.” The defendant made timely objection to this argument, and made motion to exclude it on the ground that there was no presumption that the defendant started out on Sunday morning with a pistol, and there was no evidence of this fact. The evidence referred to clearly afforded an inference that the defendant started out on the morning of the killing armed with a pistol. It was undisputed that he had one on his person at the time of the killing, and this, in connection with the evidence that he spent the night away from home, and that he spent the day in and around Castleberry, clearly justified the jury in drawing the inference that he was carrying this pistol on his person, and the fact that the defendant was armed with a weapon before and at the commencement of the altercation had a tendency to show a deadly intent at the moment of using the weapon; and specially is thus true in connection with the other evidence tending to show a state of enmity existing between the defendant and the deceased, and the deceased’s violent threat to take the defendant’s life, which had been communicated to the defendant. The solicitor made no reference to the fact that the pistol was concealed, and what was said in the case of Henson v. State on that subject is not. applicable here, but the following expression in the opinion in that case is applicable:

“That the defendant was armed with a deadly weapon before * * * the commencement of the altercation may tend to show a deadly intent at the moment of using the weapon.”—Henson v. State, 114 Ala. 28, 22 South. 128.

The statement of the solicitor was not of a fact unsupported by, or outside of the range of, the evidence, but was a legitimate inference which the evidence afforded, and material to be considered by the jury, and was within the range of legitimate argument.—Cross v. State, 68 Ala. 476; Hobbs v. State, 74 Ala. 39; Childress v. Childress, 86 Ala. 77, 5 South. 775; Pruitt v. State, 92 Ala. 41, 9 South. 406; McNeill v. State, 102 Ala. 124, 15 South. 352, 48 Am. St. Rep. 17; Mitchell v. State, 114 Ala. 1, 22 South. 71. This differentiates the case from the case of Dunmore v. State, 115 Ala. 69, 22 South. 541. In that case there was no evidence authorizing an inference that the witnesses who testified in behalf of the defendant “had gotten a paid of the stolen goods,” and this statement of a fact, clearly outside of the scope of the evidence justified the reversal of the judgment in that case.

We have carefully examined all questions presented by the record, and find no error therein. The judgment of the circuit court is affirmed.

Affirmed.