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Morrissette v. State

Morrissette v. State.

Morrissette v. State, 75 So. 176 (Ala. Ct. App. 1917)
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Court
Alabama Court of Appeals · State Appellate Courts
Decided
April 17, 1917
Docket
No. 2 Div. 166.
Judges
Brown
Citations
75 So. 17675 So. 17716 Ala. App. 321917 Ala. App. LEXIS 104
Disposition
Affirmed.
Headnotes
1. Homicide (14) — Instructions—Self-. Defense. The requested charge that defendant would have the right to set up self-defense if the jury believe he bona fide withdrew from the difficulty, though he provoked 4t, ignores the burden resting on him, essential to his right to claim self-defense, to show that he was in impending peril of life or limb when he fired. [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629.] 2. Homicide 1056(l) — Review—Exception. Exception to the oral charge is necessary for review thereof. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2008, 2670.] 6. Criminal Law <&wkey;1040 — Review—Objection Below. Objection below to verdict or action of the court thereon is necessary for review. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2649.]
Summary
Appeal from Circuit Court, Dallas County; J. B. Evans, Judge. Oscar Morrissette was convicted of an assault with, intent to murder, and apiieais. The following charges were refused to defendant: (1) If you believe from the evidence in this case that defendant bona fide withdrew from the difficulty, even though he provoked the difficulty, then he would have the right to set up such defense. (2) If you are satisfied from the evidence in this case that defendant is free from fault in bringing on the difficulty, and that defendant bona fide retreated, and if you are further satisfied from the evidence that the assault made by Lovell, or the threatened assault made by him, if perpetrated, was likely to produce death or great bodily harm, you should acquit defendant. The person assaulted was Lovell Givan.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Brown

BROWN, P. J.

[1, 2]

Charge 1 refused to the defendant ignores the burden resting upon bim, essential to bis right to plead self-defense, to show that be was in impending peril of life or limb at tbe time be fired on Givan witb a deadly weapon. It also assumes that Givan, after defendant’s withdrawal in good faith, pursued him, or renewed the difficulty and became the assailant. Brewer v. State, 160 Ala. 66 , 49 South. 336 .

[3, 4]

Charge 2, as worded, has a tendency to mislead to the conclusion that the court entertained the view that Givan assaulted or threatened to assault defendant. It was subject to tbe further objection that it predicated the right of self-defense on a “threatened assault made by bim,” leaving out of consideration the presence of an overt act or attempt to carry into effect such “threatened assault,” thereby producing impending peril, real or apparent, to tlie defendant’s life or limb.

[5, 6]

There was no exception to tbe oral charge of the court, and no objection to the verdict of tbe jury or tbe action of the court in sentencing the defendant, and hence nothing to review. McPherson v. State (Sup.) 198 Ala. 5 , 73 South. 387 ; Woodson v. State, 170 Ala. 87 , 54 South. 191 .

Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1917: 11920: 11921: 11922: 21924: 11926: 11935: 11936: 11950: 11988: 119172026peak 1922 · 2

Relies on it most ⓘ

  1. Stone v. State93 So. 706 (Ala. 1922)
  2. Montgomery v. State85 So. 785 (Ala. 1920)
  3. Durham v. State210 P. 934 (Wyo. 1922)
  4. Moss v. State536 So. 2d 129 (Ala. Crim. App. 1988)
  5. Warren v. State90 So. 277 (Ala. Ct. App. 1921)
  6. Baldwin v. State170 So. 349 (Ala. Ct. App. 1936)

Most recent

  1. Moss v. State536 So. 2d 129 (Ala. Crim. App. 1988)
  2. Long v. State44 So. 2d 775 (Ala. Ct. App. 1950)
  3. Baldwin v. State170 So. 349 (Ala. Ct. App. 1936)
  4. Gulledge v. State160 So. 556 (Ala. Ct. App. 1935)
  5. Hammond v. State109 So. 172 (Ala. Ct. App. 1926)
  6. Parcus v. State99 So. 662 (Ala. Ct. App. 1924)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
McPherson v. State, 73 So. 387 (Ala. 1916) 59
Brewer v. State, 49 So. 336 (Ala. 1909) 34
Woodson v. State, 54 So. 181 (Ala. 1910) 61

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