Opinion
8 Div. 306.
August 4, 1931. As Modified on Denial of Rehearing October 6, 1931.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Norman Lovelady was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
The following charges were refused to defendant:
"8. The court charges the jury that if defendant was free from fault in bringing on the difficulty, he was under no obligation to retreat, unless you believe he could have retreated without increasing his danger, or with reasonable safety.
"9. The court charges the jury that it is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life, but, if the jury are satisfied, from all the evidence in the case, that the circumstances attending the striking of the fatal blow were such as to impress the defendant, with a reasonable belief that at the time of the striking the blow it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty."
"11. The court charges the jury that if they find from the evidence that the deceased, at the time the blow was struck, was making an assault on the defendant, and that the defendant, in resisting said assault, used force not greatly disproportionate to the character of the assault, and death accidentally resulted, this would be self-defense, and the jury should acquit him.
"12. 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 did the cutting before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."
"14. If you find from the evidence in this case that the stab or cut in question was given by the defendant under the influence of sudden passion as that term has hereinbefore been defined, and that the knife used was not calculated to produce death in its usual customary and ordinary use, that is as a weapon, the knife would not ordinarily produce death, and further believe that there was no intention on the part of defendant to kill the deceased, then you cannot convict the defendant of manslaughter in the first degree.
"15. I charge you that if upon considering the evidence in this case you have therefrom a reasonable doubt as to whether the defendant had reason to believe as a reasonable man, that he was in imminent danger of being killed or seriously injured by the deceased, at the time he cut the deceased, then you will find the defendant not guilty.
"16. I charge you that the defendant as a reasonable man, knowing what he knew, and seeing what he saw, had a right to act upon the appearances as they presented themselves to him as a reasonable man; and if the defendant as such reasonable man, knowing what he knew, and seeing what he saw, had a right to believe and did believe from such appearances that he was about to suffer great bodily harm at the hands of Norris, and that if, acting alone upon that belief, he cut Norris, then I instruct you that the defendant is entitled to an acquittal at your hands.
"17. I charge you that if you find from the evidence that defendant was first attacked by Norris in such a way that, to save his own life, or to save himself from grievous bodily harm, it was necessary for him to kill deceased, the defense of self defense is made out; and if there is a reasonable doubt in your minds whether this defense is made out, the defendant is entitled to the benefit of that doubt.
"18. I charge you that if you believe from the evidence that the deceased was a boy or young man of superior strength to defendant, and that by reason of such superior strength he was regarded by defendant as able to do him serious bodily injury, or kill him without arms, and that deceased was unarmed and defendant knew of said fact, if it was a fact, and further believe from the evidence that said Norris assaulted defendant, or by his words or acts produced in the mind of defendant a reasonable apprehension of fear of assault, and that said defendant honestly so believed at the time that he was in such danger, he had the right to defend himself with all necessary force, viewing the matter from his standpoint in the light of all the surrounding facts and circumstances, provided you find from the evidence the defendant was free from fault in bringing on the difficulty and had no reasonable mode of retreating at the time."
"C. The Court charges the jury that if the state's witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether."
"X. If you find from the evidence that in the beginning of the affray, all the defendant said or did, was to say to Bruce Norris, without anger and without the purpose to offend or provoke Norris: 'What did you break' and 'what will your daddie say when he comes from town,' then I charge you this alone did not bring on the difficulty so as to prevent the defendant from invoking self defense."
Lynne Lynne, of Decatur, for appellant.
Charge 3 is a correct statement of the law, and its refusal constituted reversible error. Harrington v. State, 83 Ala. 16, 3 So. 425; Williams v. State, 83 Ala. 19, 3 So. 616; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75. When showings are used, they go to the jury as if the witness had been on the stand. Charge 6-A should have been given. Coosa P. C. Co. v. Crankfield, 202 Ala. 369, 80 So. 451; Williams v. Anniston E. G. Co., 164 Ala. 84, 51 So. 385. Charge 8 has been held good. Ex parte Johnson, 183 Ala. 88, 63 So. 73. Charge 9 is clearly the law. Keith v. State, 97 Ala. 32, 11 So. 914. Charge 11 is correct and ought to have been given. Martin v. State, 90 Ala. 605, 8 So. 858, 24 Am. St. Rep. 844. So of charge 12. Chaney v. State, 178 Ala. 44, 59 So. 604. Charge C has frequently been held good, and its refusal to be error. Adams v. State, 175 Ala. 8, 57 So. 591; Stinson v. State, 10 Ala. App. 110, 64 So. 507; Hammond v. State, 147 Ala. 79, 41 So. 761; Burkett v. State, 154 Ala. 19, 45 So. 682; Clayton v. State, 23 Ala. App. 150, 123 So. 250. Charge 14 correctly stated the law, and should have been given. Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; Harrington v. State, 83 Ala. 16, 3 So. 425; Williams v. State, 83 Ala. 19, 3 So. 616; Wolf v. State, 95 Tex. Cr. Rep. 237, 253 S.W. 269. The principle announced in charge 15 is sound. People v. Mitchell, 129 Cal. 584, 62 P. 187; State v. Jones, 71 N.J. Law, 543, 60 A. 396. Charge 16 is a fair and full statement of the law. People v. Hopper, 42 Cal.App. 499, 183 P. 837. Charge 18 was taken from the case of State v. Jones, 71 N.J. Law, 543, 60 A. 396. By reason of the physical differences between the parties, charge 18 was particularly applicable, and should have been given. Defendant was entitled to have the jury instructed as sought by charge X.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Charge 9 is bad, and was correctly refused. Jackson v. State, 147 Ala. 699, 41 So. 178; Goodwin v. State, 102 Ala. 87, 15 So. 571; Wright v. State, 148 Ala. 596, 42 So. 745; Walker v. State, 223 Ala. 294, 135 So. 438; Matthews v. State, 136 Ala. 47, 33 So. 838. Charge 11 is bad. Martin v. State, 90 Ala. 802, 8 So. 858, 24 Am. St. Rep. 844, has been overruled on this point. Williams v. State, 140 Ala. 10, 37 So. 228; Diamond v. State, 22 Ala. App. 410, 116 So. 312; Sisk v. State, 22 Ala. App. 368, 115 So. 766; Matthews v. State, 22 Ala. App. 366, 115 So. 763; Baxter v. State, 22 Ala. App. 360, 115 So. 763. In not defining self-defense, this charge submits a question of law to the jury. Bell v. State, 19 Ala. App. 666, 100 So. 196; Adams v. State, 133 Ala. 166, 31 So. 851. Charge C is bad. Davis v. State, 188 Ala. 59, 66 So. 67; Turner v. State, 21 Ala. App. 95, 105 So. 705; Sov. Camp v. Ward, 201 Ala. 446, 78 So. 824. Charge 6-A would require the same weight to be given the showings of absent witnesses as the testimony of any witness who testifies in the case, instead of requiring the same weight to be given such showings as would be given the testimony of said witnesses. This charge is bad. The court will not be reversed for either giving or refusing a charge using the word "believe." Charge 8 was well refused. Loreno v. Ross, 222 Ala. 567, 133 So. 251; Ragland v. Poe, 222 Ala. 548, 133 So. 578; Wallace v. Elliott, 220 Ala. 125, 124 So. 286; Ala. L. S. Co. v. Adams, 218 Ala. 647, 119 So. 853; Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022; Kirby v. State, 151 Ala. 66, 44 So. 38; Enzor v. State, ante, p. 346, 135 So. 595.
The defendant, a boy seventeen years old, and weighing 110 pounds, was indicted for the killing of another boy twenty-one years old and weighing 160 pounds, by stabbing him with a knife. The boys had been friends and associates from infancy, but on the day of the homicide there was a half-gallon fruit jar of whisky; the big boy drank some of it, a falling out between the friends, an assault by the dead boy, and the stabbing by the defendant, from which the deceased died.
For the purposes of this opinion, it will be unnecessary to set out the evidence. It will suffice to say that the evidence for the state tended to prove a case of manslaughter, if no higher degree, while the evidence for defendant tended to prove a clear case of self-defense, which would justify the homicide. These were all questions for the jury, and, as the affirmative charge is not insisted upon, the evidence will not be commented on further in that connection.
The court refused to give at the request of the defendant in writing charge 3, as follows: "The court charges the jury that if they are not satisfied beyond a reasonable doubt that, when the defendant struck with his knife, he intended to kill Norris, or that the act was one from which death or great bodily harm would ordinarily, or in the usual course of events, follow, they must acquit the defendant of manslaughter in the first degree."
This charge has been held good in Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; Harrington v. State, 83 Ala. 16, 3 So. 425, and Williams v. State, 83 Ala. 19, 3 So. 616. But, since the case of Edwards v. State, 205 Ala. 160, 87 So. 179, which was based on Davis v. State, 188 Ala. 59, 66 So. 67, charges requiring acquittal, unless the jury is convinced beyond a reasonable doubt, must be predicated upon the whole evidence, and, when not so predicated, are held to be technically bad, and the refusal of such charges is not reversible error. Since the decision in the Edwards Case, supra, the Supreme Court and this court have cited that case with approval more than fifty times, and it may now be said to be settled law.
There was a showing made and allowed for one of defendant's witnesses, who was absent from the trial, and the defendant requested the court to give charge 6-A, as follows: "A showing for an absent witness is entitled to the same weight as the testimony of any witness who testifies in the case, which is such weight as the jury thinks it entitled to, after considering all the evidence."
This charge finds support and is held to be good in Coosa Portland Cement Co. v. Crankfield, 202 Ala. 369, 80 So. 451; Williams v. Anniston Electric Co., 164 Ala. 93, 51 So. 385. In the Coosa Portland Cement Co. Case, supra, the refusal to give a similar charge was held to be reversible error.
Refused charge 8 is held to be good in Ex parte Johnson, 183 Ala. 88, 63 So. 73, which case is cited with approval by this court in Thompson v. State, 23 Ala. App. 529, 128 So. 461.
Refused charge 9 has been approved in Keith v. State, 97 Ala. 32, 11 So. 914, which case was referred to with approval in Grubbs v. State, 213 Ala. 576, 105 So. 583. There is some confusion in the decisions on this charge, which Mr. Justice Foster has explained in Walker v. State (Ala.Sup.) 135 So. 438, in which opinion it is held that the refusal of such a charge is justified because it is misleading and not because it does not state the law.
Refused charge 11 in this case is a copy of charge 9, held to be good in Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; but this case was expressly overruled on this point in Williams v. State, 140 Ala. 10, 37 So. 228; Matthews v. State, 22 Ala. App. 366, 115 So. 763.
Refused charge 12 is a substantial copy of charge 14, held to be good in Chaney v. State, 178 Ala. 44, 59 So. 604, and in several cases upon which that decision is based, but it appears that, where the questions of freedom from fault and retreat are involved, and are questions for the jury, the refusal to give the charge is not error, for that it omits to hypothesize defendant's freedom from fault in bringing on the difficulty as well as an inability to retreat without increasing defendant's peril. Gaston v. State, 161 Ala. 37, 49 So. 876; Nearer v. State, 198 Ala. 1, 73 So. 429; Collins v. State, 17 Ala. App. 186, 84 So. 417.
Refused charge C is an exact copy of charge 20 held to be good and its refusal reversible error in Adams v. State, 175 Ala. 8, 57 So. 591. The charge finds further support in the following cases: Stinson v. State, 10 Ala. App. 110, 64 So. 507; Hammond v. State, 147 Ala. 79, 41 So. 761; Burkett v. State, 154 Ala. 19, 45 So. 682; Clayton v. State, 23 Ala. App. 150, 123 So. 250.
Notwithstanding approval of charges similar to refused charge 14, in Lewis v. State, 96 Ala. 11, 11 So. 259, 38 Am. St. Rep. 75; Harrington v. State, 83 Ala. 16, 3 So. 425; Williams v. State, 83 Ala. 16, 3 So. 616, we hold that the cases cited do not apply to this case. If, as a matter of law, the instrument used in the homicide is a weapon calculated to produce death or great bodily harm, and the blow was intentionally and unlawfully given, the crime would be no less than manslaughter in the first degree. Reynolds v. State, ante, p. 249, 134 So. 815; Cole v. State, 16 Ala. App. 55, 75 So. 261.
Charges 15, 16, and 17 are properly refused as ignoring the doctrine of freedom from fault and of retreat. Moreover, charge 16 is an argument.
Charge 18 was properly refused. Peril of a battery from which great bodily harm cannot be readily apprehended will not justify the taking of life, even though there be no reasonable mode of escape. Fisticuff blows do not usually inflict grievous bodily harm. Scales v. State, 96 Ala. 76, 11 So. 121; Davis v. State, 92 Ala. 20, 9 So. 616; Eiland v. State, 52 Ala. 322. There may be and doubtless are, cases which hold that under certain conditions an assault with the bare hands will justify the use of a deadly weapon in repelling the assault, but such conditions do not exist in this case. Charge 18, therefore, in addition to being an argument, is, under the facts, abstract.
Charge X was invasive of the province of the jury. They had all the facts and circumstances before them, and from these facts and circumstances it was the jury's duty to ascertain who was at fault.
It is urged in brief that this court should pass upon the excessiveness of the punishment as fixed by the jury. There may be cases where the excessiveness of punishment would justify the setting aside of the verdict, but such cases are rare, and it should never be done unless it is apparent that passion, prejudice, or outside influence had a part in fixing the punishment. None of these influences appear in this record.
The charges which we have hereinabove held to be good are not covered by the court in his oral charge or by the charges given in writing at the instance of defendant, as is indicated by the trial judge, who states his reasons for refusal on most of the charges refused.
For the errors in refusing the charges as pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
On Rehearing.
No brief was filed by the Attorney General on the original submission of this case and the application might be stricken, but, in view of the importance of the questions involved and the painstaking and able brief filed by the Attorney General on this application, the opinion is corrected and extended, and the application is overruled.