Opinion
1 Div. 509.
May 15, 1945.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Elbert Nettles was convicted of murder in the second degree, and he appeals.
Affirmed.
Defendant's witness W. B. Owens testified that he was deputy sheriff of Monroe County and was such at the time Elbert Nettles killed Clifton Avery. Defendant thereupon propounded this question: "I will ask you, Mr. Owens, if prior to that time you had been called to Elbert's place on account of the conduct of Clifton Avery?" The state objected to this question, the court sustained the objection, and defendant reserved an exception.
The following charge, requested by defendant, was refused:
"It is not necessary, under the evidence in this case, that the defendant should have been actually in danger of death or great bodily harm at the time he killed the deceased, or that retreat would have really increased his peril, in order for him to have been justified in shooting the deceased. Defendant had the right to act on the appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of deceased in the light of any threats that the evidence proves the deceased to have made against defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had the right to shoot the deceased in his own defense, although as a matter of fact he was not in actual danger, and retreat would not have endangered his personal safety; and, if the jury believe that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the State, and, if not shown, they should acquit the defendant."
J. D. Ratcliffe, of Monroeville, for appellant.
An affirmative answer to the question to witness Owens would have tended to prove that deceased was more or less a bully, took pleasure in creating disturbances; that defendant was trying to conduct his place in an orderly manner; and that notwithstanding defendant's admonition and his effort to get the peace officer to come to his assistance, deceased persisted in his quarrelsome and overbearing conduct. This evidence should have gone to the jury. Requested charge 14 is not covered by the oral charge, is not abstract and correctly states the law. Its refusal was error. Bluett v. State, 151 Ala. 41, 44 So. 84; Bell v. State, 20 Ala. App. 425, 104 So. 443; Black v. State, 5 Ala. App. 87, 59 So. 692.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
There was no error in sustaining objection to the question to witness Owens in the form propounded, being designed to show what deceased's conduct was at another time. There was no evidence showing that any threats were made against defendant by deceased, and charge 14 was therefore abstract and properly refused. 6 Ala.Dig., Criminal Law, 814(1).
The testimony in this case discloses conclusively, that this appellant, defendant below, shot and killed Clifton Avery, with a shot gun, as charged in the indictment. The jury, as the law requires, fixed his punishment, and in accordance with the verdict, defendant was duly and legally sentenced to imprisonment in the penitentiary for a period of ten years.
There was some slight conflict in the evidence and the trial court properly submitted the case to the jury.
There were very few exceptions reserved by defendant's earnest counsel to the court's rulings pending the trial, and but two insistences of error are presented and insisted upon on this appeal. These exceptions are so clearly without semblance of merit they really need not be discussed. However, in the brief of the Attorney General these questions are dealt with and the argument is pertinent and correct wherein it is stated:
"The rule of law (is) that proof in reference to a previous difficulty is only admissible if tending to show malice or motive for doing the act, and in such cases it is the fact of such difficulty, and its gravity which may be proved. It is settled that the merits and particulars of a previous difficulty cannot be given in evidence. This line of testimony is admissible as shedding light on who was the aggressor. Watts v. State, 177 Ala. 24, 30, 59 So. 270, 272; Nelson v. State, 13 Ala. App. 28, 68 So. 573; Wise v. State, 11 Ala. App. 72, 66 So. 128; Folkes v. State, 17 Ala. App. 119, 82 So. 567; Thornton v. State, 18 Ala. App. 225, 90 So. 66; McClusky v. State, 209 Ala. 611, 96 So. 925.
"There was no error on the part of the trial judge in sustaining the State's objection to the question in the form propounded to witness W. B. Owens. This question in the form propounded was calculated to show a former difficulty between this appellant and the deceased, but was designed solely to show what the 'conduct' of the defendant was at another time.
"However, the appellant got the benefit of this line of testimony anyway, for he stated that he had at a prior time reported to Mr. Owens, the Deputy Sheriff of Monroe County, that the deceased had been raising a racket at appellant's place of business."
The only other insistence of error is the action of the trial court in refusing appellant's written requested charge numbered 14.
In answer to this insistence it appears there was no evidence in the record showing that any threats were made against this appellant by the deceased, and, therefore, the refused charge is abstract. 6 Alabama Digest, Criminal Law, 814(1), p. 822.
In our opinion the evidence in this case was amply sufficient to support the verdict of the jury and to sustain the judgment of conviction pronounced and entered.
No motion for a new trial was made.
The record is regular in all respects. There appearing no error the judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.