Williams v. State

SAYRE, J.

The state showed without objection that the defendant, an hour or two before the killing, which occurred within the curtilage of defendant’s home, had gone to the home of the deceased and there had an angry conversation with the wife of deceased, during which he had made threats comprehensive enough to embrace the deceased, as well as his wife. The state was permit *57 ted, over defendant’s objection, to show that defendant had at the time a pistol. This, in connection with the threat, was permissible for the purpose of illustrating defendant’s mental attitude towards the deceased when the latter was shortly thereafter slain by the defendant.

It may be. that ideas intended to be conveyed to the jury by a number of the charges refused to the defendant would have been of assistance to the jury in understanding the law of the case and in reaching a righteous verdict; but they had each been stated to the jury substantially in one or more of the 58 charges which were given by the trial court. They, therefore, needed not to be repeated by that court, nor do they call for consideration at length by this. Particularly is this true of those numerous charges which stated so simple a proposition as that the jury must be convinced beyond a reasonable doubt, and defined a reasonable doubt in so great a variety of form and language as probably would lead the jury to the opinion that a doubt of the sort was of delicate and difficult comprehension, and inspire the fear that perhaps, after all, a jury of ordinary men might miss its meaning.

Charge 41, the second of that number to be found in the record, and discussed in appellant’s brief, appears to have been given in the court below. The other charge 41, which was refused to the defendant, was properly refused. Charges of similar import have been condemned by this court in Allen v. State, 111 Ala. 88 , 20 South. 490 , and in subsequent cases.

Charge 7 was open to criticism. It was treated as a proper charge in Brown v. State, 118 Ala. 114 , 23 South. 81 , where the defendant had been convicted of burglary. In Johnson v. State, 133 Ala. 38 , 31 South. 951 , the charge was criticised as calculated to mislead the jury to believe that the evidence adduced by the state alone *58 should show the defendant to be guilty, whereas it was the duty of the jury, in determining the question of guilt, to consider also the testimony introduced by the defendant, which in itself proved the homicide, if nothing more. So here the evidence offered by the defendant not only showed the act of killing by the defendant but the most damaging circumstances against him, towit, that after defendant had gotten from under the deceased, after they had fallen to the ground in a hand to> hand struggle, he held deceased down with his left hand while he put the pistol to the breast of deceased and fired the fatal shot. — Sanders v. State, 134 Ala. 74 , 32 South. 654 . This charge was also faulty because it asserted the defendant’s right to an acquittal on a failure to prove his guilt as charged. The indictment charged murder. But under it, and under one aspect of the evidence, the jury might have convicted the accused of manslaughter in the first degree. The charge was therefore misleading, and at outs.with numerous decisions of this court to the effect that, in cases of this character, instructions predicating the insufficiency of evidence to justify a conviction of a higher degree of homicide, without regard to its sufficiency to justify conviction of an included lesser degree, are essentially erroneous. — Stoball v. State, 116 Ala. 454 , 23 South. 162 ; Jones v. State, 79 Ala. 23 .

Charge 49 was properly refused. Passion suddenly aroused, without more, cannot reduce a homicide from murder to manslaughter. It must be aroused by nothing less than a blow stricken or threatened. The case of Martin v. State, 119 Ala. 1 , 25 South. 255 , cited by defendant, recognizes the principle stated. The charges there considered asserted defendant’s freedom from guilt of murder where the killing was the consequence of passion suddenly aroused by a blow given. In Smith v. State, 83 Ala. 26 , 3 South. 551 , also cited by defendant, *59 there was evidence going to show that the defendant had overheard the prosecutor making insulting proposals to his wife, and, on entering his own house, was assaulted by the prosecutor with a knife. The court, in dealing with that case, might safely assume the adequacy of such provocation. It was not within the uncontrolled power of the jury to say what should be taken as sufficient provocation. What would be sufficient provocation of such passion as would reduce the grade of the homicide is a question of technical, legal learning, which should be defined by the court, and not left to the jury. —Jones v: State, 'supra. Charges 20 and 21 were therefore properly refused.

Charges 71, 72, 19, 14, S3, and 31 seem to have been framed with the purpose to assert the doctrine that if the defendant was free from fault in bringing on the difficulty, and acted on the belief, “well-founded and honestly entertained” at the time of the fatal shot, that he was in imminent danger of his life or limb, and must fire in order to save himself, he should be acquitted. They were evidently not refused as faulty in pretermitting duty to retreat, for the court charged the jury affirmatively that defendant, being at the time within the curtilage of his own home, was not required to retreat. They were refused for the fault with which they are affected, a failure to state that belief of imminent peril, and of an urgent necessity to slay an assailant, to justify, though it may be based upon appearances, must be both well-founded and honestly entertained. — Jackson v. State, 78 Ala. 471 ; Storey v. State, 71 Ala. 330 ; McCain v. State, 160 Ala. 37 , 49 South. 361 . Moreover, the substance of these charges was more than once given to the defendant in other charges.

Charge 30, refused to the accused, assumed as a fact that he did carry a pistol for defensive purposes, and was properly refused for that reason.

*60 Charges 5 and 6 were substantial duplicates of charge 4, which was given.

We have scrutinized the record without finding error, and the judgment and sentence of the court will be of-firmed.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.