Witherspoon v. State , 168 Ala. 87 ( 1910 )

McCLELLAN, J.

The conviction was of murder in ihe second degree. The justification invoked by defendant was self-defense.

From the evidence introduced it was clearly for the jury to determine whether the defense interposed was established. The declaration made by the defendant a short period of time before the shooting was susceptible of being interpreted as provocative of the fatal meeting between deceased and defendant, soon occurring. That there was no reasonable means or opportunity for defendant to have retreated, even granting the unprovoked menace of a drawn gun on him, cannot be pronounced as matter of law on the evidence before the court. The sending by defendant for his gun, the mentioned declaration made by him, and the quickness Avith which the shot followed Jake Witherspoon’s (deceased’s) remark, to say nothing of the possible inferences deducible from the relative posture of the body of deceased, of his gun and of the shoes “slung” over his shoulder, made the several inquiries usually involved in self-defense matters for the jury’s determination. The motion to exclude the evidence and the affirmative charge, requested by the defendant, were properly overruled and refused, respectively.

The testimony to which objections were made was well admitted. It tended to show that deceased was following a customary course, viz., en route to visit an house he usually visited. It also tended to refute defendant’s insistence that deceased was pursuing him because of the previous difficulty.

There is no error in the record. The judgment must be affirmed.

Affirmed.

Dowdell,, C. J., and Mayfield and Evans, JJ., concur.