Karr v. State , 100 Ala. 4 ( 1893 )

STONE, C. J.

The homicide which gave rise to this prosecution was perpetrated on August 28, 1892, and at the entrance of defendant’s dwelling. There is no conflict in the testimony on these points. When shot down and killed, deceased was approaching the door of defendant’s home with a gun in hand, though not raised, or put in position for shooting. There is testimony that deceased had made threats against the life of the accused', and that he was a man of violent and dangerous character. Now, these facts alone do not, of themselves, justify or excuse an immediate resort to deadly weapons, on the mere suspicion that life is endangered. There must be some demonstration, or apparent demonstration of an intent, coupled with ability, to take life, or inflict grievous bodily harm, before extreme measures become defensive, and can be resorted to.—Ex parte Brown, 63 Ala. 187; Brown v. State, 74 Ala. 478; Roberts v. State, 68 Ala. 156; Storey v. State, 71 Ala. 329; Rogers v. State, 62 Ala. 170; De Armon v. State, 71 Ala. 351; Myers v. State, 62 Ala. 599. The several charges given at the instance of the State assert correct legal principles, and the Circuit Court did not err in giving them.

The tendencies of the testimony possibly called for an instruction which does not appear to have been given, or asked for. There was testimony, as we have said, tending to show that deceased was a violent and dangerous man. If such was his character and disposition, more prompt and decisive measures of defense would be justifiable than if he were of a peaceable disposition. His character for violence, if found to exist, and previous threats, if believed to have been made, should be weighed by the jury in determining whether the defendant, when he fired the gun, acted under a reasonable apprehension of present, impending peril to his life, or of suffering some other grievous bodily harm.—De Armon v. State, 71 Ala. 351; Lanq v. State, 84 Ala. 1; Smith v. State, 88 Ala. 73.

It was shown that deceased had received an anonymous letter about two months before the homicide occurred. It came through the mail, and was both threatening and abusive. There was no attempt to connect the defendant with the authorship of the letter, or to show that he had any agency in getting it up, or in sending it. It made no reference whatever to the defendant, or to any subject of the quarrel, disagreement, or other relations between him and the deceased. This anonymous letter was offered in evidence by the prosecution, objected to by the defendant, the objection overruled, and the letter was read to the jury. The defendant excepted. In receiving this evidence the Circuit Court erred.

If this testimony was offered as a reason why the deceased was bringing home a gun at the time he was fired on, there are two reasons why it was improper for that purpose: First, it was too long after the receijDt of the letter to authorize the inference that the threats it contained prompted the defendant to arm himself, there being near two months between the time he received the letter and the time it appears he obtained the gun. Second, there is no attempt to show that defendant had any knowledge or notice that deceased had received snch letter.' In the absence of such notice, even if such was the reason why deceased was armed, defendant’s legal accountability must be tested and determined without any reference whatever to that letter. But we must not be misunderstood. What we have said in this connection is only important in making the inquiry whether defendant, at the time he fired the gun, had reasonable ground for believing, and did believe, it was necessary for him to kill Smith, in order to preserve his own life, or to save himself from grievous bodily harm. If the jury fail to find this to be the case, the plea of self-defense is not made good. We will add, the defendant being in his own domicil, was not bound to retreat.

The court erred also in receiving testimony that defendant took “a drink” on the night preceding the homicide. We find no other errors.

Reversed and remanded.