Robinson v. State , 155 Ala. 67 ( 1908 )

DOWDELL, J.

The appellant was indicted and tried- on the charge of murder, was found guilty of manslaughter in the first degree, and was sentenced to a term of five years’ imprisonment in the penitentiary. From the judgment of conviction and sentence the present appeal is prosecuted.

During the trial numerous exceptions were taken to the rulings of the court on the admission and exclusion of evidence. These numerous exceptions do not require treatment and consideration in detail, since many of them raise similar questions and may be grouped together and disposed of on general propositions. A number of exceptions were reserved to the refusal of the court, on the objection of the state, to permit the defendant on the cross-examination of the state’s witnesses to show the physical strength and size of the deceased. At the time of these rulings no evidence had been introduced or offered tending to show self-defense. This evidence, therefore, sought to be introduced by the defendant upon the cross-examination of the state’s witness, was immaterial and inadmissible when objected to. The same is true as to the phvsical condition of the defendant. In the absence of evidence tending to show self-defense, evidence of the relative sizes and physical condition of the parties is immaterial. — Gregory v. State, 140 Ala. 16, 37 South. 259; King v. State, 90 Ala. 612, 8 South. 856.

The state having shown a previous difficulty between the defendant and the deceased, the defendant sought to prove the particulars of said prior difficulty. This was not admissible against objection, as has often been ruled by this court. — Gorden v. State, 140 Ala. 29, 36 South. 1009, and cases there cited.

That the witness' Lewis had been asked to contribute to a fund to employ counsel to prosecute in the case was wholly immaterial; it not being shown on offered to be shown that he did in fact contribute. — Williams v. State, 140 Ala. 10, 37 South. 228 ;Carpenter v. State, 98 Ala. 32, 13 South. 534.

A careful review and consideration of all the evidence in the case satisfies us that the plea of self-defense could be of no avail to the defendant, and this on the undisputed facts and the defendant’s own testimony. The evidence is without dispute that the defendant was not free from fault in bringing on the difficulty that resulted in the killing of the deceased. While the evidence may have been, and as for that matter was, in conflict, as to who, the defendant or the deceased, made the first demonstration or effort towards drawing a pistol, the evidence is without dispute that the defendant approached the deceased, addressing him in a manner and in language well calculated, under the circumstances and in. view of the former difficulty of the day before, to invoke and bring on a difficulty. The defendant himself testified to the previous difficulty of the day before between him and the deceased, and, further, that the night following the previous difficulty threats against his life made by the deceased were communicated to him. The fatal encounter occurred early the next morning. This evidence was without dispute. On his cross-examination the defendant testified, further, that he went up to where Thomson (deceased) was. Further testifying, he said: “That was the time for me to go to work. I did not know what Mr. Thompson’s feelings at that time was. I suppose he was angry. He carried a pistol. I watched him when I walked up there. I watched him to see when I walked up. I didn’t look the first thing to see his pistol. I just simply walked up and looked at the man, looked at him in the'face, and he didn’t say anything to me, and I just thought to myself I will speak to Mr. Thompson. I knew he had said he was going to kill me, and I knew he had called me a son of a bitch. I supposed he was armed. I knew, if I approached him and he had said those things, it meant a difficulty. I did not have my hand where I could get my gun; had my hand hanging at nry side. I did not get my pistol out before he could get his out. I think he got his out first. I don’t know what kept him from shooting. He tried to get the pistol out first, and I think he did get it out. I just jerked my pistol and shot. I said, ‘Mr Thompson, let’s settle this trouble.’ Just as soon as he went for his gun, I went for mine. When he threw his hand to his gun, I said, ‘Don’t do that!’ or ‘Don’t pull your gun! — something like that. I pulled mine after I saw he was getting his out. As I stepped back I pulled mine out. When I said that I was in four or five feet of him. When I shot him, I was about the same distance, I suppose, He had got somewhere near the door there. I don’t know just what position he was in, exactly; that is, I don’t know. I didn’t shoot him in the back. I don’t know whether he had time to turn around after I shot the first time or not. He didn’t turn around. I shot him both shots in front.”

The defendant had already testified on his direct examination that the first thing that happened, when he went up to where the deceased was, was what he said to the deceased as to settlement of their difficulty. What the defendant’s private or secret intentions were as to a friendly settlement can be of no consequence, since there is no pretense that the deceased had any knowledge or intimation of such intentions of the defendant. The law is well settled in this state that a defendant cannot invoke tbe doctrine of self-defense unless be is entirely free from all fault in bringing on tbe difficulty. 1' Mayfield’s Dig. p. 807, subd. 8; 5 Mayfield’s Dig. p. 863, subds. 2, 3. Tbe defendant’s own testimony, and this without conflict or dispute, clearly shows that be was not free from all fault in bringing on tbe fatal difficulty. He says that be knew that to approach tbe deceased under existing circumstances meant a difficulty, and yet be approached tbe deceased, within four or five feet, and, “looking him in tbe face,” tbe deceased saying nothing, be (tbe defendant) said, to use bis own language, “Mr. Thompson, let’s settle this trouble,” and immediately tbe deceased began to draw bis pistol; but he (tbe defendant) got bis pistol out first and fired tbe fatal shot. It cannot in reason be said from this evidence that tbe defendant, in tbe language of tbe decisions of this court, was entirely free from fault. It is our judgment, on tbe undisputed evidence, that tbe defendant could not invoke tbe doctrine of self-defense. This view of tbe case disposes of many of tbe exceptions reserved on tbe rulings of tbe trial court on tbe admission of evidence.

That part of the oral charge of tbe court excepted to was free from error.

The law is firmly settled in this state that under tbe plea of self-defense tbe burden of proof is on the defendant, and therefore charges numbered 1 and 2, requested by tbe defendant, were properly refused. Charge numbered 3, requested by tbe defendant, was purely argumentative, and for that reason, if no other, properly refused.

Tbe several written charges, given at tbe request of the state, correctly stated the law, and in the giving of them there was no error.

Tbe portions of tbe opinions of Mitchell v. State, 60 Ala. 26, and Ex parte Nettles, 58 Ala. 268, read by counsel for tbe state in argument to tbe jury, was in no sense inflammatory, and not without tbe scope of legitimate argument. It was not tbe assertion of any fact, but simply an argument based on hypothetical statement. Tbe fact that tbe language was that of an eminent Judge made it none tbe less legitimate as a part of tbe argument by counsel for tbe state.

We find no error in tbe record, and tbe judgment appealed from will be affirmed.

Affirmed.

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