Summary
holding that there was no error in admission of diagram of a human head indicating the location of the wounds on the head of the victim where the diagram was made by the two doctors who had examined the body and was illustrative of their testimony
Summary of this case from Johnson v. StateOpinion
3 Div. 648.
February 11, 1930. Rehearing Denied March 4, 1930.
Appeal from Circuit Court, Conecuh County; F. W. Hare, Judge.
Fletcher Walters was convicted of murder in the second degree, and he appeals.
Affirmed.
The following charges were refused to defendant:
"16. The Court charges the jury that if at the time the defendant struck the fatal blow there was reasonable apprehension that he was about to suffer great bodily harm or that his own life was in peril, and the defendant really believed that such danger existed, it is the duty of the jury to acquit the defendant if the defendant was free from fault in bringing on the difficulty."
"18. I charge you, gentlemen of the jury that to enable the defendant to avail himself of his right to act in self defense it is not necessary that he was threatened with actual danger to life or limb, but that under the law it is sufficient that he acted upon a reasonable fear that his own life was in danger or that he was about to suffer some grievous bodily harm and if at the time he struck the fatal blow the circumstances were such as to impress a reasonable man with the honest belief that he was about to suffer grievous bodily harm or lose his life, and the defendant honestly believed such danger existed, then you should acquit the defendant, if at the time the fatal shot was fired the defendant was free from fault in bringing on the difficulty."
"20. I charge you, gentlemen of the jury, that the law does not require the defendant to retreat to avoid killing his assailant if he was in fact assailed in such a manner as to produce a reasonable fear in the mind of a reasonable man that his life was in peril or that he was about to suffer grievous bodily harm from his assailant, and the defendant honestly believed such danger existed, provided he was free from fault in bringing on the difficulty."
"22. The Court charges the jury that if at the time the defendant struck the fatal blow the deceased was making a demonstration as though he intended to do harm to the defendant and the circumstances were such as to impress a reasonable man with the honest belief that he was about to suffer grievous bodily harm or to lose his life, and the defendant so believed, and the defendant was free from fault in bringing on the difficulty, then the defendant had a right to strike in his defense, although the danger may not have been actual, and, I charge you, gentlemen of the jury, that even though there should not have been actual danger, yet, if the circumstances were such at the time the fatal blow was struck as to impress a reasonable man with the honest belief that there was danger, and the defendant so believed, then this would be sufficient for the defendant to have struck the fatal blow, provided the defendant was free from fault in bringing on the difficulty."
"24. The Court charges the jury that if they believe from the evidence in this case that Hassell, the deceased, had made threats against the defendant, Fletcher Walters, and subsequent to said threats was making a demonstration as if he, said Hassell, was intending to carry the said threats into effect, and the defendant was free from fault in bringing on the difficulty and the circumstances were such as to impress a reasonable man with the honest belief that his life was in danger or he was in danger of suffering grievous bodily harm at the hands of the said Hassell, and the defendant was so impressed and believed, then the defendant had a right to strike the said Hassell."
"27. I charge you, gentlemen of the jury, that to enable the defendant to avail himself of his right to act in self defense, it is not necessary that he was threatened with actual danger to life or limb but that under the law it is sufficient that he acted upon a reasonable fear that his own life was in danger or that he was about to suffer some grievous bodily harm and if at the time he struck the fatal blow the circumstances were such as to impress a reasonable man with the honest belief that he was about to suffer grievous bodily harm or lose his life, and the defendant honestly believed such danger existed, then you should acquit the defendant, if at the time the fatal blow was struck the defendant was free from fault in bringing on the difficulty."
Hamilton Jones, of Evergreen, for appellant.
If two persons fight willingly without the fixed intention on the part of one to take the life of the other, and death results, the defendant is guilty of manslaughter in the first degree. 13 R. C. L. 851; State v. Partlow, 90 Mo. 608, 4 S.W. 14, 59 Am. Rep. 31; Diamond v. State, 219 Ala. 674, 123 So. 55. Deceased struck the first blow, and defendant did not enter the combat with a deadly weapon. The crime could not be greater than manslaughter. 30 C. J. 33. If one person kills another in mutual combat, the superiority of the weapon used by the slayer is not a fact from which malice is to be inferred. 29 C. J. 1101, 1139. Under the circumstances of this case, there was no duty on defendant to retreat. Suell v. Derricott, 161 Ala. 259, 49 So. 895; Madison v. State, 196 Ala. 590, 71 So. 706; Storey v. State, 71 Ala. 329; Hutcheson v. State, 170 Ala. 29, 54 So. 119. In a charge of murder, malice aforethought must be shown beyond a reasonable doubt. Andrews v. State, 159 Ala. 14, 48 So. 858; Ferguson v. State, 21 Ala. App. 116, 105 So. 435.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty. Gen., for the State.
Charges covered by the oral charge are refused without error. Code 1923, § 9509. Defendant is not excused from retreating by reason of the fact that he was in his own automobile in the public highway when he was attacked by the deceased. Jones v. State, 22 Ala. App. 472, 116 So. 896. If defendant entered into the fight willingly, he could not invoke the doctrine of self-defense. Hughey v. State, 21 Ala. App. 32, 104 So. 884. Self-defense became a jury question where there was some evidence tending to show defense. Davis v. State, 214 Ala. 273, 107 So. 737. Malice is presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Davis v. State, supra. Where one strikes another with a dangerous weapon, and inflicts injuries which result in death, the law presumes that be intended not only to commit the act, but also the necessary and probable consequences of the act. Lawman v. State, 18 Ala. App. 569, 93 So. 69.
The homicide here complained of grew out of a difficulty between the defendant and deceased at a lonely place on the public road at about eleven o'clock at night. No one else was present at the time of the killing and therefore the statement of defendant is the only direct testimony as to what took place. There were certain facts and circumstances, aside from the testimony of defendant, tending to shed light on the issues and from which the jury was authorized to draw inferences tending to sustain the state in its contention that the homicide was unlawful, and that it was done with malice. It is conceded that the homicide was committed; that the defendant struck the fatal blow; that in doing so he used an automobile pump (a deadly weapon), and that the killing was unlawful, unless the defendant may be justified under his plea of self-defense. But, it is seriously insisted that the facts proving the killing rebuts the presumption of malice, which is ordinarily presumed from the use of a deadly weapon, and that the jury should have been so instructed affirmatively. Malice, design, and motive are as a rule but inferential facts. They are inferred from facts and circumstances positively proven. If direct positive proof of them were required it could rarely be given. Hadley v. State, 55 Ala. 31. In the instant case there was proof tending to show that the killing was done with an instrument calculated to produce death. It was therefore for the jury to say under the evidence whether the act was done with malice. Roberts v. State, 68 Ala. 156. We are cited the case of Diamond v. State, 219 Ala. 674, 123 So. 55, to sustain defendant's contention that under the facts here there cannot be a conviction for a greater crime than that of manslaughter. It will be observed that in the Diamond Case no weapon was used. Even in that case it was observed that there was some evidence tending to show a brutal assault, and that it was attended with threats to kill, making it a question for the jury as to whether the offense was murder or manslaughter. In the instant case there was some evidence of bad feeling, and of an implied threat, and certainly evidence from which the jury could infer a brutal assault far in excess of any mere defense incident to a mutual rencounter. The statement of the rule cited by appellant in 13 R. C. L. p. 851, par. 154, is applicable in cases where no weapons are used, but where as here, a weapon calculated to produce death or great bodily harm was used, and in such manner as to evidence a vicious attack rather than as a defensive measure, the jury is authorized to infer all the malice necessary to fix the degree of the crime as murder and not manslaughter.
We have carefully considered refused charges 16 and 27. These charges omit a consideration of the doctrine of retreat and it is insisted by appellant that this case comes under the influence of those cases which hold that where the evidence discloses a situation where retreat was apparently impossible without apparent increase of defendant's peril, the hypothesis of the doctrine may be omitted in a charge. Such a rule is recognized in Madison v. State, 196 Ala. 590, 71 So. 706, but there is no such state of facts here. The facts and circumstances surrounding this killing leave the question of retreat open to the jury. Charges pretermitting its consideration are properly refused. The foregoing applies specifically to charges 16, 18, 20, 22, 24, and 27.
The substantive law included in charges 13, 14, and 17, were fully covered by the court in his oral charge.
In connection with the testimony of Doctors Ray and Jones there was introduced in evidence a diagram of a human head indicating the location of the wounds on the held of deceased. This diagram was made by the two doctors in collaboration, and who had examined the head and wounds of deceased. There was no error in admitting the diagram in connection with and as illustrative of the testimony of these two expert witnesses. 4 Mitchies Digest 203 Par. 276.
The issues were fairly presented to the jury, the evidence on all questions was sufficient to sustain the verdict, and the motion for new trial was properly overruled.
There is no error in the record and the judgment is affirmed.
Affirmed.