Opinion
4 Div. 983.
June 30, 1933. Rehearing Denied September 12, 1933.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Lawson Newman was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
The following charges were refused to defendant:
"2. The court charges the jury that if the defendant shot under a bona fide belief that his life was in danger, and had under all the circumstances reasonable cause to believe that he was in imminent danger at the moment the shots were inflicted, it would be immaterial whether there was actual danger or not."
"4. I charge you, gentlemen of 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 shoot 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 will entitle the defendant to an acquittal, and you should acquit him."
T. M. Patterson, of Clayton, for appellant.
The testimony as to what was said on the morning before the killing in the afternoon, relative to what was furnished and who furnished the tenant, was inadmissible — was calculated to arouse prejudice against defendant. Jones v. State, 17 Ala. App. 394, 85 So. 830; Carlisle v. State, 22 Ala. App. 255, 114 So. 475; Crawford v. State, 112 Ala. 1, 21 So. 214; Sawyer v. State, 20 Ala. App. 504, 103 So. 309. Details of prior difficulties are not admissible. Pressley v. State, 166 Ala. 17, 52 So. 337; Martin v. State, 77 Ala. 1; Jones v. State, 116 Ala. 468, 23 So. 135. Refused charge 2 should have been given. Robinson v. State, 18 Ala. App. 612, 93 So. 262. So of charge 4. Gilbert v. State, 20 Ala. App. 565, 104 So. 45; Diamond v. State, 22 Ala. App. 410, 116 So. 312; Chaney v. State, 178 Ala. 44, 59 So. 604; Hurst v. State, 24 Ala. App. 47, 129 So. 714.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
Defendant sought to justify his act on the ground of self-defense. His actions prior to the crime were admissible to prove his feelings toward the deceased. The details shed light on who was the aggressor in the fatal encounter. Knotts v. State, 16 Ala. App. 442, 78 So. 640; Wilson v. State, 12 Ala. App. 97, 68 So. 543; Dickey v. State, 15 Ala. App. 135, 72 So. 608; Page v. State, 17 Ala. App. 70, 81 So. 848; 30 C. J. 193. Charge 2 ignores the doctrine of retreat. It was properly refused. Ford v. State, 129 Ala. 16, 30 So. 27; Gordon v. State, 140 Ala. 29, 36 So. 1009; Gregory v. State, 148 Ala. 566, 42 So. 829. Charge 4 was likewise correctly refused.
The deceased was the wife of Caesar Palmer, who was a tenant of defendant living on his farm, in Barbour county. The deceased, her husband, and Pearla Palmer, mother of Caesar, were all living in the house together, and were cultivating a farm for defendant. On the morning of June 7, 1932, defendant went to the house of deceased and demanded that the three go to work in the farm. Caesar, his wife and mother all being present, refused to go to work unless defendant would furnish them with something to eat, they telling defendant that the only food they had was one bushel of meal. Defendant said: "You are going to work, or else." In this conversation the deceased spoke and said: "Yes sir, we haven't got a thing in the world only that meal" and defendant replied to her: "Hush, I'll see you later." At this time the sun was about one hour high. At that time defendant told Caesar to move, but not to move anything out of the house. Later in the day defendant again saw Caesar as he was coming across defendant's field. Caesar ran, and defendant ran after him with a pistol. Caesar outran defendant and got away.
The evidence for the state further tended to prove that defendant was drinking, and that later in the day, about 4 p. m., defendant again went to the tenant's house and forced the two women to start to the field for the purpose of hoeing some peanuts, and on the way deceased resisted, defendant struck deceased with a stick, and then shot her with the pistol and dropped her in a ditch on the side of the railroad track, where she was found by the sheriff. The evidence for the state further tends to prove that defendant was in and around the house where deceased and her family lived all that day, from the time he first came in the morning until the killing in the afternoon. The evidence on the part of defendant tended to prove a case of self-defense.
In a prosecution for homicide, evidence of connected acts and transactions leading up to and explanatory of the killing is admissible. These acts and circumstances need not necessarily be a part of the res gestæ, in the sense that they become a part of the crime itself, but they are admissible where they throw any light upon the actions, animus, or intent of the defendant, and in this case the mental attitude of defendant at the time of the fatal difficulty as bearing on the question of freedom from fault and required by defendant's plea of self-defense becomes very pertinent. Way v. State, 155 Ala. 52, 46 So. 273.
We do not depart from the well-established rule obtaining in this state that details of a former difficulty may not be given in evidence on the trial of a homicide case, but here this killing was the culmination of a series of acts and circumstances beginning in the morning with defendant and Caesar and ending in the afternoon with the killing of Caesar's wife. Everything said and done, while not strictly speaking a part of the res gestæ, tends to explain and relates to the killing. Lawson v. State, 155 Ala. 44, 46 So. 259.
The rulings of the court on the admission of evidence were free from prejudicial error.
Refused charge 2 was held to be bad in Robinson v. State, 18 Ala. App. 612, 93 So. 262. It is still a bad charge, and in addition to the reasons assigned in the Robinson Case, this charge does not confine the consideration to the evidence, and it also ignores the doctrine of retreat.
Refused charge 4 was held to be good and its refusal error in Gilbert v. State, 20 Ala. App. 565, 104 So. 45, and in Chaney v. State, 178 Ala. 44, 59 So. 604, 606. This holding was based upon the facts in those cases and in which there was no question as to who was the aggressor. In the Chaney Case, supra, it is expressly pointed out that: "He [Chaney] had the right to go into his place of business without being at fault in this respect, and he was under no legal duty to retreat therefrom, and the charges did not have to hypothesize the duty to retreat or freedom from fault." As was pointed out in McCarty v. State, 22 Ala. App. 62, 112 So. 184, sometimes this charge is properly given and sometimes properly refused, depending on the facts in the particular case. This is a case where it is properly refused. Gaston v. State, 161 Ala. 37, 49 So. 876; Griffin v. State, 165 Ala. 29, 50 So. 962; Cox v. State, 19 Ala. App. 206, 96 So. 83.
There is no reversible error in the record. Let the judgment be affirmed.
Affirmed.