Davis v. State , 214 Ala. 273 ( 1926 )

Defendant was convicted of murder in the second degree, and sentenced to 40 years in the penitentiary. Numerous exceptions were reserved. We shall state only the reasons for a reversal and such conclusions as may be deemed necessary to another trial.

Defendant killed one Howell under circumstances which may be briefly stated as follows: Defendant had testified as a witness for the prosecution in a case at Hartselle in which deceased was charged with driving an automobile at a speed in violation of law. Deceased, it must be inferred from the evidence, felt greatly aggrieved, and had threatened to give defendant a beating. A few days afterwards, in the afternoon, deceased drove an automobile into Decatur. With him were two of the witnesses who testified for the state at the trial here under review. Without intending to pronounce judgment on the facts, we state what followed according to defendant's contention, because defendant had a right to have his version of the facts, so far as supported by tendencies of the evidence, taken into consideration by the jury. It was for the jury to determine the effect of the accusing and the excusing facts, and we do not intend to suggest what their determination should have been. With this in mind, we proceed: Driving down along Second street, about 8:30 o'clock in the evening, deceased passed the point where defendant was standing on the sidewalk. After a few minutes, deceased drove his car back along Second street, up to the pavement immediately in front of the place where defendant stood, and there came to a stop. Deceased was a powerful young man, weighing 175 to 180 pounds. Defendant, a barber, weighed 120. From what has been stated, and from other tendencies of the evidence to be stated, the jury may very well have inferred that the purpose of deceased was to bring on a difficulty with defendant. No other occasion for his stopping at that point appears in the evidence. The state's evidence was that deceased then opened the proceedings by inviting defendant to get in the car, saying that he would carry him (defendant) out to the edge of town and give him a good whipping. Defendant declined the invitation; testimony in his behalf being that he said to deceased, in effect, that if he (deceased) would come back when sober, he (defendant) would settle with him. Thereupon, defendant moving away from the car, deceased applying a foul epithet to defendant, and telling him that he had not the guts to do anything, deceased leaned over his companion, who sat on the automobile seat between deceased and defendant — but who at this point "rolled" hurriedly out of the car — took hold of the door with his left hand as if to get out, and at the same time, according to defendant, reached with his right hand down towards the seat, whereupon defendant drew his pistol, turned, and, from a distance of 10, 12, or 15 feet, as variously stated, fired five shots in rapid succession into the body of deceased, who died upon the spot. One shot entered near the left nipple, going directly in, and this may have been accepted as tending to show that deceased had turned towards defendant. Two others struck deceased in front; still two others entered his body from the rear.

The trial appears to have been affected by two theories, which, in the circumstances, we consider to have been erroneous and prejudicial to defendant's case: (1) That there was no evidence tending to show a case of self-defense; (2) that opprobrious epithets, unless attended by actual assault, could never reduce an unlawful homicide from murder to manslaughter.

We are far from saying that defendant should have been acquitted on the ground of self-defense. Still, we think, there was some evidence tending to show self-defense, which thereupon, according to the long-standing precedents in this court, became a question for the jury. Deceased brought on the difficulty, and every indication points to the conclusion that he intended to bring it on. Ordinarily, one may not repel the attack of an unarmed man by killing him, for ordinarily, such an attack does not furnish reasonable ground for the apprehension of great or grievous bodily harm, but it does not follow that in every such case the great bodily harm which the law of self-defense contemplates can never be inflicted by blows with hands or feet. That may depend upon circumstances, such as great disparity between the parties in the matter of physical power or other peculiar conditions, and we are of opinion that in the case shown by the record the question whether defendant had reasonable ground to apprehend such harm was one for jury decision. The weakest point in the defense is found by the argument that defendant failed to retreat when the precepts of the law required him to do so. If the alternative of retreat or taking the life of his assailant was presented, and defendant had an avenue of escape of which he might have availed himself without adding to his peril, it was his duty to retreat, and his failure to do so would have deprived him of this plea of self-defense. Still, defendant was where he had a right to be; he had sought no difficulty with deceased; and no rule of law required him to take to his heels merely because he saw deceased in his neighborhood. He might stand his ground until it became reasonably apparent that, to avoid great bodily harm, he must retreat rather than take the life of his adversary. Whatever the court may now think of its effect, there was some tendency of the evidence in support of the plea of self-defense of which the jury were the appointed judges. Roberts v. State, 68 Ala. 156; Turner v. State, 49 So. 828,160 Ala. 44.

It is true that mere words, no matter how insulting, never reduce a felonious homicide to manslaughter. Manslaughter is the unlawful killing of a human being without malice; that is, as the unpremeditated result of hot blood, caused by sudden, sufficient provocation. And such provocation can, in no case, be less than an assault, either actually committed or menaced under such circumstances as reasonably convince the mind that the accused had cause to believe, and did believe, that he would be presently assaulted, and that he struck, or fired the fatal shot, not from a formed design to kill, but in consequence of passion suddenly aroused by a blow given or apparently about to be given. This is substantially the language of Stone, J., in Mitchell v. State, 60 Ala. 32. It has been frequently followed. Reeves v. State, 65 So. 160, 186 Ala. 14. There was no evidence that deceased actually assaulted defendant; but there was evidence tending to show a demonstration on the part of deceased from which the jury might have inferred that the defendant had good cause to believe, and did believe, he was about to be assaulted — that an assault was threatened. It follows that the court erred when it gave the jury to understand, as it did, that there was nothing in the case which might have the effect of reducing the offense charged to manslaughter. As giving color and character to the provocation alleged, defendant should have been allowed, after evidence tending to show the demonstration to which we have referred, to adduce evidence of the threats made by deceased and communicated to defendant, of the respective sizes of the parties to the difficulty, and that deceased was drunk or drinking, to be considered by the jury in fixing the degree of defendant's guilt, in the event his plea of self-defense was not allowed to prevail. Neilson v. State, 40 So. 221, 146 Ala. 683; Barden v. State, 40 So. 948, 145 Ala. 1. Some of these facts were testified to by some of the witnesses without objection; but defendant was entitled to have full proof of them — to have them clearly established in the minds of the jury — when he offered the same proof by other witnesses.

Charge 10, refused to defendant, has been approved by this court as a proper charge in circumstances such as obtain in this case. Bluett v. State, 44 So. 84, 151 Ala. 56; Id., 49 So. 854, 161 Ala. 17; Richardson v. State, 68 So. 57, 191 Ala. 28; Glass v. State, 78 So. 819, 201 Ala. 442, and frequently by the Court of Appeals. In Robinson v. State, 106 So. 134, 213 Ala. 691, this court approved the refusal of a charge much like this, charge 4 in that case; but that charge omitted to predicate consideration of "all the evidence."

Charge 27 was properly refused. It was defective, as this court has often held, because it omitted to state that the belief of necessity to kill must be honestly entertained as well as reasonable. Griffin v. State, 50 So. 962, 165 Ala. 45.

Charges 43 and 45 were bad. They invaded the province of the jury, whose function it was, within the limits heretofore stated, to say what effect the provocation shown had upon the defendant. They were also confused in their statement of the law, and tended to lead the jury to conclude that the provocation of mere words might suffice to reduce an unlawful homicide from murder to manslaughter.

Charges 23 and 24 were refused without error. Malice is presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Hornsby v. State, 10 So. 522, 94 Ala. 66, and cases cited to section 4454 of the Code 1923, vol. 2, p. 430. Charge 24 pretermitted also consideration of facts attendant upon the killing other than the segregated fact of killing.

We think charge 42 should have been given. Of course, one may commit murder without the specific intent to take the life of his victim. But this is not a case calling for the application of that principle of law. It may be hard to conceive that defendant intended to do anything but what he did; still, intention is an inferential fact, and, except in the circumstances stated when we were considering charges 23 and 24 in this case, must be determined by the jury. Miller v. State, 19 So. 37, 107 Ala. 51. Charge 14 involved an unsound definition of murder in the second degree. Deliberation and premeditation, beyond that necessarily involved in malice, are not required to characterize murder in the second degree. McQueen v. State, 15 So. 824, 103 Ala. 16.

Charges 29 and 30 were properly refused. They predicate provocation sufficient to reduce homicide to manslaughter, or to furnish proper cause of acquittal, on the mere use of words. So with reference to charges 38 and 39, which have the additional fault that they are invasive of the province of the jury.

The record does not show any ruling on defendant's several pleas in abatement. Without intimating that there was merit in any of them, we must presume they were not called to the attention of the court.

The solicitor's nol. pros. of counts 1, 2, and 4 of the indictment relieved the indictment of all questions arising out of those counts. We think the trial court properly treated each paragraph of the indictment as a separate count, though the formality of so designating and numbering them was not observed.

For the errors designated, the judgment must be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.