Wilkins v. State , 98 Ala. 1 ( 1893 )

HARALSON, J.

There were ten charges given in writing, at the instance of the State, to the giving of each of which the defendant excepted, and assigns as error. These and one other assignment of error, arising on the admission of' evidence, raise the questions we are to decide. We consider the charges according to their number, and grouped as far as practicable, as the counsel for defendant has presented them in argument.

I. Charge No. 1 is a correct statement of the familiar principle of the presumption of malice, which, in cases of homicide, arises from the use of a deadly weapon, declaring that the burden of rebutting this presumption is on the slayer, unless the evidence which proves the killing rebuts it. Its correctness was not questioned in the argument of counsel, and could not be. — Hornsby v. The State, 94 Ala. 66; Gibson v. The State, 89 Ala. 121; Sylvester v. The State, 72 Ala. 201. DeArman v. The State, 71 Ala. 360.

II. Charges 2 and 6 considered together, have been criti-cised each, as involving the proposition, “That before self-defense can be set up, flight must have been shown to have been impossible; they both ignore the material qualification upon this doctrine, that flight need not be attempted if it would increase, or apparently increase, tbe danger to which defendant was subjected;” and the 2nd, for the additional reason, as assigned, that it “asserts that self-defense can not exist unless the defendant entertained the honest belief in the existence of such necessity.

The grounds of objection, as first stated, in each of these charges, is not justified by the language of either. They do not assert, and can not be fairly construed as asserting, that retreat must have been shown to be impossible before defendant could strike in self-defense.

The words, — taken from the 6th — “ from which there was no other probable means of escape,” and those from the 2nd, — ■“ belief of his imminent peril, and of the existence of an urgent necessity to take the life of his assailant” — exclude the idea of retreat as a duty, when an attempt to make it would increase one’s peril; but they do imply- — as we have before construed the language of the 9th, particularly — that the means, if resorted to, would probably be safe and successful. — Hammill v. The State, 90 Ala. 582.

The other ground of objection to the 2nd, is equally untenable. The doctrine of self-defense has its origin in the very principle questioned, namely, that to justify the taking of the life of another, when the slayer would excuse himself on the plea of self-defense, (the other justifying conditions being admitted) the danger to him must have been real, or so manifestly apparent, as to create the reasonable belief in his mind, of present, impending peril to life or limb, and that this belief must have been well founded and honest. Lewis v. The State, 88 Ala. 13; Cross v. The State, 63 Ala. 48; Bain v. The State, 70 Ala. 7; DeArmam v. The State, 71 Ala. 359; Storey v. The State, Ib. 329; 1 Wharton’s Cr. Law, § 491.

III. The ground of objection to the 3rd charge is opposed to our adjudications on that subject. The 3rd and last proposition in the charge, is the only one excepted to ; but the whole charge, and this last instruction, are thoroughly in accord with the established doctrine of self-defense, as repeatedly declared by this court. — Poe v. The State, 87 Ala. 69; Tesney v. The Slate, 77 Ala. 39; Willis v. The State, 73 Ala. 362; Ingram v. The State, 67 Ala. 67.

IV. Charges 4, 7 and 8, assert principles which have been heretofore recognized by us as correct, and from which we are unwilling to depart. They each contain the elements entering into the definition of murder in § 3725 of the Code. Martin v. The State, 77 Ala. 4; Lang v. The State, 84 Ala. 1; Hammill v. The State, 90 Ala. 582; Smith v. The State, 68 Ala. 424; Mitchell v. The State, 60 Ala. 26.

V. Charges 9 and 10 liave heretofore been sustained as free from error.—Allen v. The State, 87 Ala. 109; Norris v. The State, Ib., 88. See also Wharton’s Criminal Ev. § 429. The only objection urged to them is, that they single out and give undue prominence to the fact of defendant’s interest in the cause, ignoring other evidence tending to corroborate him ; and that charge 9, submitted to the jury, the consideration of conflict in the evidence, when in fact, there was none.

As to the first objection, the charges may be open to criticism, and might have been refused. It lias been heretofore said by us, that “such charges should be avoided, as far as practicable, being calculated to unduly impress the minds of the jury, and prejudice the defendant. When given, however, they will not work a reversal of the judgment, unless it appear that injury resulted.—Cribbs v. The State, 86 Ala. 616. Generally, neither the giving or the refusal to give such charges will be considered as reversible error. If given, the party feeling himself aggrieved, may always ask explanatory charges.—McKleroy v. The State, 77 Ala. 95; Lang v. The State, 84 Ala. 1; Poe v. The State, 87 Ala. 70; Waller v. The State, 89 Ala. 79.

The assumption that there was no conflict in the evidence is a mistaken conclusion. Worley was not a peace-maker between these two men. He fomented the strife, in which one of them, very unnecessarily lost his life, and the other, is overwhelmed in trouble not far short of death. He used language towards deceased which was violent and unfriendly, and easily persuaded defendant to accompany him on a visit which did not appear to be a peaceable and- friendly one, toward deceased. There are indications in the evidence, that they carried one Murdock with them. He was along and witnessed the killing, and neither he nor Worley raised a hand to prevent it, so far as appears. Might they not have done so ? The jury might well have concluded from the evidence, on the part of the State, that the attack made on the deceased was in pursuance of a previously formed purpose to chastise or otherwise punish him, and that there was no real or apparent necessity, on the part of the defendant, to kill the deceased, in order to save his own life or limb. The whole effort, on the part of the defendant, in the course of the trial, was to make it appear he acted in self-defense. The evidence of the State’s witnesses is in implied conflict with that given by defendant and his witnesses in bis effort to establish this defense, and tends to show that the killing- was done in self-defense.

YI. It is said, the 5th charge, in that it contained, as one of the elements of self-defense, the condition that, “To make the plea of self-defense available, the defendant must be without fault,” was erroneous, in that it placed the burden of proving that fact on the defendant. This was only a part of the charge, which clearly and correctly defined the doctrine of self-defense, in accord with our uniform rulings. It did not misplace the burden of prool/for it was not given on, and had no reference to, that subject It was but the declaration of a well recognized principle of criminal law, which the jury were to apply to the evidence in the case. The charge, containing the clause excepted to, might have been erroneous, if there had been no evidence on the part of the State to show that the defendant was at fault in having brought on the difficulty. But, there was evidence introduced by the State, and also, on the part of defendant, -which tended to show that defendant contrived to bring about, and did provoke the conflict in which he slew his adversary, and that he could have retreated if he would. When the State proved the intentional killing of deceased by defendant with a deadly weapon, the burden rested on the defendant to show a pressing, imperious necessity to take life in self-defense, unless the fact arose out of the evidence produced against him, to prove the homicide. If this -were shown, the burden was then on the State, to show that defendant was in fault in provoking the difficulty, which being established was a full answer to the plea of self-defense. The law does not presume such provocation, so as to impose the burden of its disproof on defendant. But, where there is evidence tending to establish the plea of self-defense, and also, to show that it was overcome, in that the defendant was at fault in bringing on the supposed necessity to take life to save his own, the court may, without any invasion of the rule we are considering as to burden of proof, charge the jury, as -was done in this 5th charge.—McDaniel v. The State, 76 Ala. 7; Baker v. The State, 81 Ala. 38; Brown v. The State, 83 Ala. 33; Cleveland v. The State, 86 Ala. 9; Cribbs v. The State, Ib. 616; Lewis v. The State, 88 Ala. 13; Gibson v. The State, 89 Ala. 127; Hammill v. The State, 90 Ala. 580.

YII. In the cause of the examination of the mother of deceased as a witness for the State, the solicitor propounded to her, and the court allowed, against the objection of defendant, the question, “Was he (the deceased), a larger man than Mr. Wilkins, the defendant.?” to which she replied, that “he was about the same size.”

There was no error here. It was certainly competent for the State to show, that there was not such disparity in the size and strength of the two men, as to induce the defendant to believe, that he was in the greater peril in consequence of such disparity, if it existed. Whether he was larger or smaller, than, or of equal size with the defendant, was a fact competent to be brought out, for the fair consideration of the jury, in construing the motive and conduct of the defendant on the fatal occasion. If he had been larger, the defendant would have been permitted to show it, as he did introduce evidence tending to show, in the course of the trial. If of equal size or smaller, the State — for the same reasons defendant was properly permitted to show the size of deceased — -could show, that the two men were of equal size, or that deceased was smaller than defendant. — Wharton on Homicide, § 606.

We find no error in the record, and the judgment and sentence of the court below is affirmed.

Affirmed.