Opinion
8 Div. 655.
June 21, 1938. Rehearing Denied October 4, 1938.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
W. D., alias Doris, Griffin and Bennie Griffin were convicted of manslaughter in the first degree, and they appeal.
Affirmed.
Certiorari denied by Supreme Court in Griffin v. State, 236 Ala. 584, 184 So. 208.
The following charges were refused to defendants.
"2. The Court charges the jury that if the circumstances attending the killing of deceased were such as would justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not retreat without adding to his peril, and defendant W. D. Griffin believed such to be the case, he was justified in shooting deceased, although he was not in actual danger, and retreat would not have added to his peril; and, if defendant acted under such circumstances, the burden of showing that said defendant was not free from fault in bringing on the difficulty, is on the State.
"5. The Court charges the jury that it is the law that W. D. Griffin defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by the deceased, and if, on considering the evidence or any part of it, when considered with the whole evidence, you have a reasonable doubt as to whether he was justified in taking the life of deceased, in defending himself from such assault, it will become your duty to acquit him.
"8. The Court charges the jury that if, after looking at all the evidence in this case, you are left in such a state of doubt and uncertainty that you cannot say beyond a reasonable doubt whether the defendant Bennie Griffin acted upon a well founded and reasonable belief that it was necessary to take the life of the deceased in order to save W. D. Griffin from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle the defendant Bennie Griffin to an acquittal, and you should so find.
"10. The Court charges the jury that it is the law that defendant Bennie Griffin had a right to protect W. D. Griffin from real or reasonably apparent felonious assault by the deceased, and if, on considering the evidence or any part of it when considered with the whole evidence, you have a reasonable doubt as to whether defendant Bennie Griffin was justified in taking the life of deceased in defending W. D. Griffin from such assault, it will become your duty to acquit him.
"10. The Court charges the jury that if you believe from the evidence in this case that the defendant W. D. Griffin at time of the shooting was at his own home or in the curtilage thereof, and that he was free from fault in bringing on the difficulty, and that he had reasonable grounds to believe that he was in grave danger to his life or limb, I charge you that he did not have to retreat before shooting the deceased."
Evidence on the part of the State tended to show that there was a disagreement between deceased and defendant W. D. Griffin with reference to a cow sold by the latter to the former; that after some words W. D. Griffin drew a pistol and thereupon deceased struck him with his cane several times, and that at this point defendant Bennie Griffin (nephew of W. D. Griffin) came to the rescue and both defendants fired shots into deceased's body, killing him.
Evidence for the defendants tended to show that deceased struck and beat W. D. Griffin to the ground before the latter drew his pistol; that defendant Bennie Griffin shot after W. D. Griffin had been beaten to the ground and after Bennie Griffin had warned deceased not to strike W. D. Griffin again; and that the shots of Bennie Griffin went over deceased's head, and that W. D. Griffin shot after he was knocked down.
W. H. Long, of Decatur, and Wm. C. Rayburn, of Guntersville, for appellants.
Charge 2 is a correct charge and should have been given. Black v. State, 5 Ala. App. 87, 59 So. 692; Terry v. State, 17 Ala. App. 527, 86 So. 127; Kennedy v. State, 140 Ala. 1, 37 So. 90; Caldwell v. State, 160 Ala. 96, 49 So. 679; Davis v. State, 8 Ala. App. 147, 62 So. 1027; Salm v. State, 89 Ala. 56, 8 So. 66; Gilmore v. State, 99 Ala. 154, 13 So. 536; McCoy v. State, 170 Ala. 10, 54 So. 428; Bailey v. State, 168 Ala. 4, 53 So. 296, 390; Rosenberg v. State, 5 Ala. App. 196, 59 So. 366, 367. Charge 5 correctly states the law as to self-defense. Terry v. State, supra. Charge 8 is a correct statement of the law on reasonable doubt. Chaney v. State, 178 Ala. 44, 59 So. 604; Keith v. State, 97 Ala. 32, 11 So. 914. Charge 10 is an approved statement of the law, and should have been given. Teel v. State, 18 Ala. App. 405, 92 So. 518; Cox v. State, 19 Ala. App. 205, 96 So. 83; Kirkley v. State, 19 Ala. App. 570, 99 So. 56; Terry v. State, supra; Glass v. State, 201 Ala. 441, 78 So. 819; Kennedy v. State, supra; Smith v. State, 183 Ala. 10, 62 So. 864.
A. A. Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.
Charge 2 does not purport to base the belief of defendant upon an honest belief. It was properly refused. Bragg v. State, 236 Ala. 270, 183 So. 682. Charge 5 is subject to the same criticism, and further pretermits consideration of retreat and freedom from fault. Charge 8 is likewise bad. Bragg v. State, supra. Charges numbered 10 are both bad. Hudson v. State, 217 Ala. 479, 116 So. 800; Bragg v. State, supra.
Insistences are made by the appellants that the verdict of the jury was contrary to the great weight of the evidence, and that the defendants were entitled to the affirmative charge on the theory that the evidence for the State was not sufficient to overcome the presumption of innocence, or, if not that, the verdict should be set aside on account of the great preponderance of the evidence favoring the defendants.
Neither of these contentions are tenable. The evidence for the State, if believed by the jury beyond a reasonable doubt, was sufficient to overcome the presumption of innocence and to sustain the verdict of guilt.
Upon the second proposition; we have examined the testimony as shown by this record, and we do not find that it presents any justification for interference on our part. The questions were plainly for the jury, and it was for them to say what weight should be given the testimony of the witnesses, who were examined ore tenus before them.
The homicide grew out of a mutual rencounter between W. D. Griffin and the deceased within the curtilage of the dwelling of Griffin. The facts leading up to the difficulty were fully gone into and testified to by eye witnesses. The rulings of the court on the admission of this testimony were free from prejudicial error.
The appellants insist that the court committed reversible error in refusing to give at their request charge 2. This charge is similar to charge 27 in Davis v. State, 214 Ala. 273, 107 So. 737, in which the Supreme Court, speaking through Sayre, Judge, said (page 741): "It was defective, as this court has often held, because it omitted to state that the belief of necessity to kill must be honestly entertained as well as reasonable." This may be a narrow view to take of the charge, but the decision in the Davis Case, supra, has been followed in many cases in the Supreme Court, the last of which being Ex parte State, ex rel. Attorney General, (John H. Bragg, alias, v. State of Alabama, 183 So. 682), in which the Supreme Court, speaking through Gardner, Judge, said: "The State insists the charge is subject to criticism for a failure to qualify defendant's belief as an honest belief. * * * The point is well taken. Charge 27 considered in Davis v. State, 214 Ala. 273, 107 So. 737, is in all respects substantially the same as charge 6 herein." Following the cases cited there, and other cases of similar import, we hold that charge 2 was properly refused.
Refused charge 5 is bad for the reasons as above set out. In addition to them, the charge pretermits a consideration of freedom from fault in bringing on the difficulty.
Refused charge 6 is fully covered by the court in its oral charge.
A charge similar to refused charge 8 was held to be good in Chaney v. State, 178 Ala. 44, 59 So. 604, and its refusal reversible error, but in that case it was pointed out that the charge did not 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. In the instant case, one of the issues was as to whether the fatal difficulty was provoked by the deceased or by the defendant W. D. Griffin, therefore a charge which failed to hypothesize freedom from fault on the part of W. D. Griffin would be fatal and properly refused.
The difficulty resulting in the homicide was originally between W. D. Griffin and the deceased. Bennie Griffin, the co-defendant, was a nephew of W. D. Griffin, and both were living in the same house and within the curtilage where the difficulty took place. So that, the defense of Bennie Griffin became dependent upon whether or not W. D. Griffin was at fault in bringing on the difficulty, and any charge on self-defense ignoring this issue would be bad and properly refused. Such is the case as to refused charge 10.
There are two charges marked 10, and the foregoing rule is applicable to the first of these charges marked 10. The second charge marked 10 is bad; in that it fails to hypothesize an honest belief. The authorities for this have been cited under a discussion of refused charge 2.
There are two charges marked 9. The first of these was covered by the court in its oral charge. The second, being the affirmative charge, was properly refused as being invasive of the province of the jury.
We have read this record as required by the Statute and have considered each and every objection. The court has committed no reversible error in any instance. The general charge of the court was full and explicit upon every issue involved.
There is no error in the record. The judgment is affirmed.
Affirmed.