Matthews v. State , 16 Ala. App. 514 ( 1918 )

This is the companion case to that of Charles Sanders v. State, 79 So. 504,¹ the appellant here being the person whom it was agreed should carry one of the guns, and go to the back door and guard it, so as to cut off this avenue of escape from the deceased, or to prevent an outcry from members of his family. The evidence is without conflict that the gun that killed the deceased was in the hands of Sanders, and at the time it was discharged Sanders had presented it at deceased in firing position, and called on him to throw up his hands. The evidence is further without conflict that the act of presenting the gun by Sanders at deceased was in pursuance of the agreed plan of the conspirators, and that the purpose of this act was to coerce the party slain to surrender and submit to the proposed abuse, or prevent his resistance until he could be overcome by the superior force of the mob, and the evidence is further without conflict that the defendant was present for the purpose of aiding and abetting in the assault and battery contemplated by the conspiracy.

The rule of criminal responsibility in such cases is that each of the conspirators is responsible for everything done by his confederate which follows directly or incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. If the act of the confederate is in pursuance of the common plan of the conspirators, or is the ordinary and probable effect of the wrongful act agreed to be done, and is committed in pursuance of the common plot, all are criminally liable. Williams v. State, 81 Ala. 5, 1 So. 179, and authorities there cited; McAnally v. State, 74 Ala. 16; Martin v. State, 89 Ala. 115,8 So. 23, 18 Am. St. Rep. 91; 5 R. C. L. p. 1063, § 4.

As was said in Williams v. State, supra:

"Every man has the right to defend his house against every unlawful invasion, and to defend his person, when within it, against every and all violence without the necessity of retreat. The experience of mankind shows that very few men will fail to respond to instinct by exercising this right to the extent even of killing an assailant, if necessary. When a mob, conspiring together unlawfully, go to a man's house to do any serious violence to his person, especially in the nighttime as here, they can expect nothing else than to meet with armed opposition, and the inference is not unreasonable that they intend nothing less than to oppose force to force, in the furtherance of their design. The natural and probable consequence of this is homicide, either of one or more of the assailants or of the party thus assailed, and such homicide, when committed by any one of the conspirators, can be nothing less than murder in all who combine to commit the unlawful act of violence, especially if they be near at hand, inciting, procuring, or encouraging the furtherance of the act of assault and battery." 81 Ala. 7, 1 So. 184, 60 Am. Rep. 133.

The application of these principles justifies the refusal of charges 2, 3, 5, 7, and 8, requested by the defendant.

The issue of insanity is one that must be presented by special plea, and no such plea was interposed. Code 1907, § 7176; Merrell v. State, 136 Ala. 44, 34 So. 208; Ward v. State, 96 Ala. 100, 11 So. 217; Williams v. State, 13 Ala. App. 133,69 So. 376. For this reason charges 1 and 2 were well refused.

Charge 6 is elliptical and argumentative.

It was permissible for Mrs. Edmonds to describe the wounds inflicted by the gunshot on her husband, and to state that the holes around the large wound appeared to have been made by buckshot. Sanders v. State, 134 Ala. 74, 32 So. 654; Fuller v. State, 117 Ala. 36, 23 So. 688.

The comment of the solicitor in argument to the jury touching the defendant's failure to testify as a witness, and his remarks to the court in the presence of the jury, were clearly an infringement of the statute designed to protect the defendant from unfavorable comment for failure to testify, but the only ruling of the court invoked by the defendant was favorable to him. If the defendant was not satisfied that the prejudicial results were removed by the action of the court in sustaining the objection and the withdrawal of the remarks by the solicitor, he should have requested the court to admonish the jury in respect thereto. Stone v. State, 105 Ala. 60,17 So. 114; Cutcliff v. B. R., L. P. Co., 148 Ala. 108,41 So. 873.

We have examined the other questions presented, and find nothing further that warrants discussion.

Affirmed.

¹ Ante, p. 511.