Opinion
2 Div. 378.
May 10, 1927.
Appeal from Circuit Court, Choctaw County; T. J. Bedsole, Judge.
Ulmer Mosley was convicted of murder in the second degree, and he appeals. Reversed and remanded.
These charges were refused to defendant:
3. "The court charges the jury that if, after looking at all the evidence in the case, your minds are left in such a state of 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 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 would entitle the defendant to an acquittal, and you should so find."
4. "I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the defendant was living in the house where the killing occurred, with his father at the time of the difficulty, making it his home, then he did not have to retreat if you believe from the evidence there was an overt act on the part of the deceased, Harry Rapp, for the defendant had the protection of his home to excuse him from retreating, and the law does not require him to flee from his own home."
7. "The court charges the jury that, where the evidence in the case presents to the jury with equal force two theories of the killing, one favorable to the defendant and the other unfavorable to the defendant, it is the duty of the jury to adopt that theory which is favorable to the defendant."
8. "The court charges the jury that, where the evidence in the case presents to the jury with equal force two theories of the killing, one favorable to the defendant and the other unfavorable to the defendant, it is the duty of the jury to adopt that theory which is favorable to the defendant and to acquit the defendant."
A. "I charge you, gentlemen of the jury, that before you can convict this defendant as charged in the indictment of murder in the second degree, you must believe from the evidence beyond all reasonable doubt that the defendant held malice toward the deceased, Harry Rapp, and I further charge you that there is no evidence of malice except from the use of a deadly weapon."
C. "I charge you, gentlemen of the jury, that there is no duty resting on a party to retreat from his home or residence, even though he could do so in safety."
Gray Dansby, of Butler, for appellant.
The refusal of defendant's requested charges was error. Charge 3: Harris v. State, 96 Ala. 24, 11 So. 255; Cheney v. State, 172 Ala. 368, 55 So. 801; Id., 178 Ala. 44, 59 So. 604. Charges 4 and C: Jones v. State, 76 Ala. 8; Hutcheson v. State, 170 Ala. 29, 54 So. 119; Watts v. State, 177 Ala. 24, 59 So. 270. Charge A: Hampton v. State, 45 Ala. 82. Two of defendant's material witnesses not having arrived upon the conclusion of the testimony, defendant was entitled to a mistrial or continuance. Code 1923, § 9518; Ellis v. Hearn, 132 App. Div. 207, 116 N.Y. S. 977. The oral charge was in error on the question of defendant's duty to flee. Chaney v. State, 178 Ala. 44, 59 So. 604; Hutcheson v. State, supra; Jones v. State, supra.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
It is within the sound discretion of the court whether defendant will be allowed to examine witnesses after the evidence has closed. No abuse of discretion is shown. Flowers v. State, 15 Ala. App. 220, 73 So. 126. The exceptions reserved to the court's oral charge are without merit. Stroud v. State, 55 Ala. 77; Gardner v. State, 96 Ala. 12, 11 So. 402. There was no error in refusal of requested charges. Charge 3: Givens v. State, 8 Ala. App. 122, 62 So. 1020. Charge 7: McGhee v. State, 178 Ala. 4, 59 So. 573.
Appellant was convicted of the offense of murder in the second degree and given a sentence to serve imprisonment in the penitentiary for a term of ten years. It appears that appellant and deceased, Harry Rapp, who was the husband of appellant's only sister, both made their homes, at the time of the killing of deceased by appellant, with Joab Mosley, the father of appellant, and father-in-law of deceased. The killing occurred in the home of Joab Mosley.
The evidence, on the part of the state, as to the actual circumstances of the killing, which was done by appellant shooting deceased in the head with a shotgun, was circumstantial. Appellant, on his own behalf, was his only witness, as to the facts of the shooting. He admitted the act was done by him, but claimed it was done in self-defense.
Where a fight occurs between parties, in a place which is the home of both or all of them, resulting in the injury or death of any of them, and a prosecution, met by a plea of self-defense, ensues, the element of the duty to retreat is eliminated. In other words, whereas, ordinarily, to establish a plea of self-defense it would be necessary for it to appear (1) that defendant was free from fault in provoking the difficulty, (2) that defendant was in imminent danger of suffering grievous bodily harm, and (3) that there was open to defendant no reasonably apparent mode of escape, in the case we have postulated, which is the case here, a successful establishment of defendant's plea of self-defense requires only that it be shown that the first two of the elements of self-defense as set out should exist. Corpus Juris, vol. 30, p. 72, § 245; Watts v. State, 177 Ala. 24, 59 So. 270. The portions of the oral charge of the court to which exceptions were reserved are not in accord with what we have just said, and their giving constituted reversible error.
Written charge 4 refused to appellant was faulty for failing to hypothesize freedom from fault on the part of defendant in bringing on the difficulty.
Written refused charge 2 was fully and substantially covered, in principle at least, by the oral charge of the court, in connection with the charges given at appellant's request. The same is true as to written refused charge 3. And anyway this charge was refused without error under authority of Givens v. State, 8 Ala. App. 122, 62 So. 1020.
Written refused charges 7 and 8 were each invasive of the province of the jury, and properly refused. Davis v. State, 19 Ala. App. 94, 96 So. 369.
Written refused charge "A" invades the province of the jury. Its refusal was proper.
Written refused charge "C" omits material considerations bearing upon the principle of law therein sought to be stated. Its refusal was proper.
The questions of putting the defendant to trial in the absence of certain witnesses, and refusing to allow the case to be reopened and certain witnesses to be examined after the evidence had been closed, and the arguments begun, were ones that addressed themselves to the sound discretion of the trial court. No abuse of that discretion is shown. The same is true with regard to granting defendant's request for more or additional time in which to procure the presence of witnesses wanted by him.
For the error pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.