De Wyre v. State , 190 Ala. 1 ( 1914 )

ANDERSON, J.

(1) Counsel for the appellant, in 'their brief, insist upon error because the defendant’s plea in abatement was not disposed of before he was put to trial upon the merits of the case. We find no plea in abatement in the record, and the only thing to indicate that one was interposed is a recital in the judgment entry of May 28, 1910, that one was interposed. The case was subsequently tried, and there is nothing to indicate that the plea was pressed or insisted upon, or that the defendant objected to the trial upon the merits until said plea was disposed of by the trial court. The defendant was then tried and convicted, and the judgment was reversed by the Court of Appeals, and we find no plea in abatement upon the second trial, and which is the one from which this appeal was taken. There is no merit in this point.

(2) Although the defendant was acquitted of murder in the first degree, and was convicted of murder in the second degree, yet, when said case is reversed, it stood as a capital case, and was properly treated as such until the defendant interposed his special plea of former jeopardy, and it was properly regarded as a capital case when first set down for trial, and when the jury was drawn for the trial of capital cases. The plea of former jeopardy was not interposed until February 9, 1914, the day set for the trial. It is true that, when said plea was on said day confessed by the state the case ceased to be a capital case, and the defendant was not, as a matter of law, entitled to a special venire, and the trial court could have reset it for another time, and tried it before a regular jury as any other ordinary felony, without committing reversible error; but, as the case had been set down for hearing, and the witnesses subpoenaed for said date, it would have been a useless trouble and expense to have reset the case, and we cannot conceive of any injury to the defendant in giving him the benefit of the special venire from which to select the jury to try him, instead of confining him to the regular jury for said subsequent week, notwithstanding he was not entitled, under the law and as matter of right, to a special venire. We think that it can be safely said that this action of the court, if error, but which we do not decide, was error without injury, and think that this is a fit question for the application of rule 45, which will be found in 175 Ala. xxi, 61 South. ix, and which is as follows: “Rule 45. Reversals; New Trial; Error Without Injury. Hereafter no judgment will be reversed or set aside, nor new trial granted by this court or by any other court of this state, in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken, or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

(3) Charge 16, refused the defendant, was calculated to mislead by the use of the word “alone,” which said word did not appear in the charges approved in the case of Taylor v. State, 149 Ala. 32, 49 South. 966, and Bryant v. State, 116 Ala. 445, 23 South. 40.

(4, 5) Charge 17 pretermitíed proof of good character in connection with the other evidence. Moreover, if these two charges were not subject to the vice assigned, the refusal of same would not be reversible error, as the defendant got the full benefit of the legal effect of good character in his given charges 15 and 42.

(6) There was'not error in refusing the defendant the requested charges 40 and 41. They assert no principle of law, and single out a certain part of the evi1 dence. It may be true that a charge upon the legal effect of good character is countenanced, and is an exception to the rule, as to singling out the evidence, but these charges do not attempt to define the legal rules as to the consideration of the evidence of good character; they simply state the fact that the defendant had a good character under the evidence.

(7) Charge 22 was palpably bad.

(8) Charge 24, if not otherwise bad, relieved the defendant, as matter of law, of the duty to retreat. The killing did not occur upon the premises of the defendant or any other place where he was under no duty to retreat; it occurred on the side of the railroad, where the deceased had as much right to be as the defendant, and after both of them had left their places of duty.

(9) Charge 23, if not otherwise bad, hypothesized the attack at the defendant’s place of business, when such was not the case.

(10) Charge 25, refused the defendant, ivas bad. If not otherwise faulty, it pretermitted a bona fide or reasonable belief on the part of the defendant that he was in danger, and which said omission differentiates it from charge 1 approved in the case-of Kennedy v. State, 140 Ala. 1, 37 South. 90.

(11) Chárge 26, if not otherwise bad, pretérmits the defendant’s freedom from fault in provoking the difficulty. It does not merely invoke the idea that he need not retreat if he cannot do so without increasing his peril, but authorizes him to stand his ground and defend himself with force whether he was at fault- in bringing on the difficulty or not.

(12) Charge 28 invaded the province of the jury, and was also misleading.

(13) There was no error in refusing charges 33, 34, and 35. It is true that malice is an ingredient of murder, and a defendant ought to have it defined to the jury, when upon trial for murder, as applicable to murder, but it is not every definition of malice generally, or excerpt from a text-book or opinion in defining and discussing the same, that would constitute a proper charge. The charges in question are argumentative or misleading, and do not conform to the definition of malice as an ingredient to murder as set out in the case of Cribbs v. State, 86 Ala. 613, 6 South. 109, and which seems to have been taken from the case of Hadley v. State, 55 Ala. 31.

The defendant was clearly not entitled to charges 36 and 37.

Whether charge 39 is or is not correct, it was sufficiently covered by the defendant’s given charges.

(14) There was no error in refusing charge 43. It is true that the burden is upon the state to show that the defendant was not free from fault in provoking the difficulty after he establishes the other elements of self-defense, and it is also true that he has the right to act upon appearances, but he must entertain a reasonable or bona fide belief that he was in danger, and which said belief is pretermitted by this charge.

Each objection and exception to the ruling upon the evidence has been examined and considered, and none of them constitute reversible error, and it can serve no good purpose to incumber this opinion with a discussion of same.

The judgment of the criminal court is affirmed.

Affirmed.

Mayfield, Somerville, and Gardner, JJ., concur.