Opinion
5 Div. 488.
May 18, 1950. Rehearing Denied June 30, 1950.
Appeal from the Circuit Court, Tallapoosa County, Albert Hooton, J.
J. Sanford Mullins, Alexander City, and Sam W. Oliver, Dadeville, for appellant.
The preponderance of evidence does not sustain a conviction of murder in the second degree, and the verdict should have been set aside and a new trial granted to defendant. McDowell v. State, 238 Ala. 482, 191 So. 894; Roan v. State, 225 Ala. 428, 143 So. 454; Bufford v. State, 25 Ala. App. 99, 141 So. 359; Lovejoy v. State, 244 Ala. 637, 15 So.2d 300.
In a criminal prosecution the evidence must be sufficient to prove all elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Taylor v. State, 30 Ala. App. 316, 5 So.2d 117.
A person is justified or excused in killing in defense of another person when the circumstances are such that the latter person would be justified or excused if he had committed the homicide in his own defense. Humphries v. State, 28 Ala. App. 159, 181 So. 309; Richardson v. State, 204 Ala. 124, 85 So. 789; Roberts v. State, 25 Ala. App. 477, 149 So. 356; Oliver v. State, 17 Ala. 587; Suel v. Derricott, 161 Ala. 259, 49 So. 895, 23 L.R.A., N.S., 996, 18 Ann.Cas. 636.
The right of a father to defend his daughter is founded upon the highest law of nature, and is not and cannot be superseded by any law of society. Litchfield v. State, 8 Okl.Cr. 164, 126 P. 707, 45 L.R.A., N.S., 153.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
When one kills another by the intentional use of a deadly weapon, malice, design and motive may be inferred without more, and are presumed unless the evidence which proves the killing rebuts the presumption, and casts on defendant the burden of refuting it, and to show self-defense or other justification. Booth v. State, 247 Ala. 600, 25 So.2d 427; Cooley v. State, 233 Ala. 407, 171 So. 725; Davenport v. State, 34 Ala. App. 204, 38 So.2d 285. The jury is entitled to reject defendant's evidence, though without dispute, and render a verdict of guilty; since credibility of evidence is for the jury. Cooley v. State, supra; Coates v. State, 29 Ala. App. 616, 199 So. 830. The Supreme Court does not sit as jurors on appeal. In this case the jury acted on the evidence and the trial court refused to set aside the verdict. The jury had a right to conclude that the killing was for other reasons than as testified to by defendant's witnesses. Moreover, there is some conflict in the accounts of defendant's witnesses as to actual details of the homicide. The verdict should not be disturbed. McDowell v. State, 238 Ala. 482, 191 So. 894.
It is true that generally a killing by the intentional use of a deadly weapon carries a presumption of malice and of unlawfulness, but not so if the evidence which proves the killing rebuts the presumption. Hadley v. State, 55 Ala. 31; Hornsby v. State, 94 Ala. 55, 10 So. 522; Cooley v. State, 233 Ala. 407, 171 So. 725; McDowell v. State, 238 Ala. 482, 483, 191 So. 894.
We think in this case that the evidence which proves the killing rebuts the presumption of malice, not justifying a conviction of murder in the second degree as found by the jury.
The only eyewitnesses were defendant, his wife and two daughters. One of the daughters was the wife of deceased. He was drunk and abusing his family, according to their uncontradicted testimony, at the time defendant shot him. Defendant had not manifested any ill-will or malice toward deceased: there had been no previous bad feeling between them: defendant had been only making an effort to pacify him. Deceased had resented that effort and had made a personal assault on defendant and was apparently preparing to carry out a threat he had made to drown them all at the time defendant shot him.
Although defendant may have used more force than was necessary or apparently necessary, there can be no reasonable inference of malice from the circumstances justifying his conviction of either degree of murder and sentence to thirty years in the penitentiary. Such severe punishment was manifestly unjustified. His good character was shown without conflict. That should not be ignored. It was the right and duty of defendant to protect his daughter and granddaughter from the wild, vicious conduct of deceased, then intoxicated, but not to use more force than was apparently necessary. Clack v. State, 29 Ala. App. 377, 196 So. 286; Richardson v. State, 204 Ala. 124, 85 So. 789; Forman v. State, 190 Ala. 22, 67 So. 583. Neither defendant nor any of his family was at fault in bringing on the trouble so far as shown by the evidence.
There was a motion for a new trial on the ground, among others, that the verdict was contrary to the great weight of the evidence. It was overruled. We think it should have been granted. Compare at this point McDowell v. State, supra. For that error, the judgment is reversed and the cause remanded.
Reversed and remanded.
LAWSON, SIMPSON and STAKELY, JJ., concur.