Opinion
1 Div. 576.
December 14, 1948. Rehearing Denied January 11, 1949.
Appeal from Circuit Court, Mobile County; D.H. Edington, Judge.
Aaron Dykes was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Dykes v. State, 252 Ala. 15, 39 So.2d 24.
The following charges were refused to defendant:
"4. The Court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find.
"6. The law gives a person the same right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm, as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault.
"9. I charge you, gentlemen of the jury, if the Defendant shot deceased under a bona fide belief that his life was in danger, and had under all the circumstances reasonable cause to believe that he was in imminent danger at the moment he did the shooting, it would be immaterial whether there was such actual danger or not."
Outlaw, Seale Kilborn, of Mobile, for appellant.
There being no element of freedom of fault or duty to retreat presented by the evidence it was error to refuse defendant's charge 4. McCarty v. State, 22 Ala. App. 62, 112 So. 184; Diamond v. State, 22 Ala. App. 410, 116 So. 312; Teel v. State, 18 Ala. App. 405, 92 So. 518; Gilbert v. State, 20 Ala. App. 565, 104 So. 45; Newman v. State, 25 Ala. App. 526, 149 So. 724; Russell v. State, 219 Ala. 567, 122 So. 683; Chaney v. State, 178 Ala. 44, 59 So. 604. Defendant was in the curtilage of his dwelling, the yard being included in the curtilage. It was not necessary that the yard be enclosed. Madry v. State, 201 Ala. 512, 78 So. 866; Walker v. State, 205 Ala. 197, 87 So. 833; Bowen v. State, 217 Ala. 574, 117 So. 204; Hicks v. State, 21 Ala. App. 335, 108 So. 612; McNutt v. State, 23 Ala. App. 43, 121 So. 432; Craven v. State, 22 Ala. App. 39, 111 So. 767. Charge 6, dealing with threatened bodily harm, was erroneously refused. Crumley v. State, 18 Ala. App. 105, 89 So. 847; Twitty v. State, 168 Ala. 59, 53 So. 308; Bone v. State, 8 Ala. App. 59, 62 So. 455; Black v. State, 5 Ala. App. 87, 59 So. 692; Kirkley v. State, 19 Ala. App. 570, 99 So. 56; Bailey v. State, 22 Ala. App. 531, 117 So. 505; Patterson v. State, 23 Ala. App. 428, 126 So. 420. Charge 9 was likewise erroneously refused. Abercrombie v. State, 33 Ala. App. 581, 36 So.2d 111.
A.A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Refused charge 4 was faulty in not being predicated on the apparent danger to a reasonable man. Richards v. State, 218 Ala. 660, 120 So. 148; Favors v. State, 32 Ala. App. 139, 22 So.2d 914. Charges 6 and 12 were properly refused as not being predicated on a consideration of the evidence, and they assume a question of fact which was in dispute. The place where the homicide occurred was not the curtilage of defendant. Craven v. State, 22 Ala. App. 39, 111 So. 767; Bowen v. State, 217 Ala. 574, 117 So. 204; McNutt v. State, 23 Ala. App. 43, 121 So. 432; Nunn v. State, 19 Ala. App. 619, 99 So. 738. Refused charge 9 is not predicated on freedom from fault and apparent danger to a reasonable man. Nor is it based on a consideration of all the evidence. Newman v. State, 25 Ala. App. 526, 149 So. 724. It was not error to refuse charges dealing with murder, since the conviction was for manslaughter. Pratt v. State, 27 Ala. App. 301, 171 So. 393.
On an indictment charging murder in the first degree the accused was tried and convicted of manslaughter in the first degree.
Without dispute in the evidence the appellant killed his brother-in-law by shooting him with a rifle. A justification vel non for the homicide revolved around the factual issues relating to self-defense. A jury question was clearly posed on this query.
There were comparatively few objections interposed during the progress of the introduction of the evidence. We do not see in any ruling incident thereto any question worthy of comment.
The only matter of material moment is the action of the lower court in refusing a number of written instructions which were tendered by the defendant.
Many of these instructions sought to state the right of the accused to defend himself when on his own premises, without the necessity to retreat. Each of the said charges assumes that appellant was. so situated and positioned as to come under the protection and influence of the applicable doctrine. We are not privileged to review this inquiry very accurately. Attorneys directed some of the witnesses to point out on a diagram or drawing the positions of the parties and the general surroundings of the locale of the alleged crime. These drawings and notations are not before us.
It can be said with certainty that when the fatal shot was fired the appellant was standing at or near a road which passed in front of his dwelling. The house was situated about 100 to 120 feet back from the road. The question is: Even though the accused may have been standing on his land, did this place him outside the curtilage of his home? The right of a person to defend himself on his own premises, without retreating, does not include his lands which are outside the curtilage of his home. 11 Ala. Digest, Homicide, 118 (3).
All this aside, the court in his oral charge and by given written instructions clearly and comprehensively instructed the jury with reference to this doctrine. Title 7, Sec. 273, Code 1940.
Also, the following refused charges were substantially covered in this manner, numbers 1, 5, 11, 17, 21, and 24.
Refused charges 7 and 22 are abstract. Jackson v. State, 5 Ala. App. 306, 57 So. 594; Scott v. State, 15 Ala. App. 267, 73 So. 212.
Charge number 13 relates to the offense of murder. The verdict of the jury eliminates this degree of homicide. Brake v. State, 8 Ala. App. 98, 63 So. 11; Shikles v. State, 31 Ala. App. 423, 18 So.2d 412.
In the recent case of Brown v. State, 33 Ala. App. 97, 31 So.2d 670, and in Favors v. State, 32 Ala. App. 139, 22 So.2d 914, we had occasion to review charges in exact counterpart to instruction number 4. Reference to these cases will illustrate the propriety of the refusal of the charge in the instant case.
The criticism of refused charge 18 in Madry v. State, 201 Ala. 512, 78 So. 866, is applicable to refused charge number 10 in the case at bar. It can be pointed out also that the instruction of instant concern omits the essential element of retreat. As indicated above it is not made clear by the record that the accused was relieved of this necessity.
Charge 14 was refused without error. Maxwell v. State, 32 Ala. App. 487, 27 So.2d 804; Williams v. State, 147 Ala. 10, 41 So. 992. The charge also contains the vice of being abstract. There was no evidence that the deceased was making any effort to invade the peace and security of appellant's dwelling.
Refused charge 19 assumes facts which are in dispute in the evidence. The testimony of some of the State's witnesses tended to prove that the deceased was not in the act of effectuating a felonious assault upon the defendant when the latter fired his rifle. Walker v. State, 33 Ala. App. 614, 36 So.2d 117; Ray v. State, 248 Ala. 425, 27 So.2d 872.
Refused instructions 6 and 12 are in duplicate. So far as our diligent search discloses, we find that our appellate courts have reviewed this charge in the following cases, and in each of them it has been approved: Twitty v. State, 168 Ala. 59, 53 So. 308; Richardson v. State, 204 Ala. 124, 85 So. 789; Black v. State, 5 Ala. App. 87, 59 So. 692; Bone v. State, 8 Ala. App. 59, 62 So. 455; Bailey v. State, 11 Ala. App. 8, 65 So. 422; Langston v. State, 16 Ala. App. 123, 75 So. 715; Crumley v. State, 18 Ala. App. 105, 89 So. 847; Kirkley v. State, 19 Ala. App. 570, 99 So. 56; Bailey v. State, 22 Ala. App. 531, 117 So. 505; Higdon v. State, 25 Ala. App. 209, 143 So. 213.
It is to be noted that in the Richardson case, supra, the charge contained a misapplied word, and for this sole reason it was disapproved.
It follows that it was error to refuse charge 6 or 12 in the instant case.
Charge number 9 is an exact counterpart to refused charge number 10 in the recent case of Abercrombie v. State, 33 Ala. App. 581, 36 So.2d 111. On the authorities therein cited, we disapproved its refusal. The evidence in defendant's behalf in the instant case presents a situation which made applicable the right of the accused to act upon the reasonable appearance of danger to life or limb. In this respect it is to be distinguished from the holding in Davis v. State, 188 Ala. 59, 66 So. 67.
Refused charges 16 and 18 are substantially identical to charge 9, which we have just considered.
For error in refusing the written instructions which we have indicated, it is ordered that the judgment of the court below be reversed and the cause remanded.
Reversed and remanded.