Opinion
4 Div. 882.
February 27, 1945.
Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.
Jesse Graham was convicted of murder in the second degree, and he appeals.
Affirmed.
The following charges were refused to defendant:
"13. The Court charges the jury that the deceased was a trespasser at the time of the fatal shooting and the defendant had a right to use such force as was necessary to put the deceased off his premises."
"20. The court charges that the defendant, from the evidence in this case, did not provoke the difficulty."
E.O. Baldwin, of Andalusia, for appellant.
Under the terms of the statute, the defendant has the right to require the court to charge on the effect of the evidence. Code 1940, Tit. 7, §§ 270, 273; Vinson v. State, 29 Ala. App. 234, 194 So. 705. Where in homicide prosecution evidence tends to show that deceased is a trespasser and there is no conflict in the testimony, the court has inherent power to charge, without being required to do so by one of the parties, that deceased was a trespasser. Authorities, supra. One accused of homicide has no duty to retreat from deceased who was a trespasser at accused's home. Vinson v. State, supra.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
In prosecution for homicide, the question whether accused was wholly free from fault in provoking the difficulty is for the jury. Pollard v. State, 12 Ala. App. 82, 68 So. 494. Self-defense is a question for the jury. 11 Ala. Dig., Homicide § 276. The burden of proving self-defense is on defendant. 11 Ala. Dig., Homicide § 151 (3). Charges invasive of the province of the jury and giving undue prominence to evidence of accused, are properly refused. 6 Ala. Dig., Crim. Law § 755; Miller v. State, 21 Ala. App. 261, 107 So. 226; Bone v. State, 8 Ala. App. 59, 62 So. 455; Holcombe v. State, 17 Ala. App. 91, 82 So. 630.
Appellant was indicted and put on trial for the offense of murder in the first degree. He was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of ten years and one day.
It was alleged in the indictment, and proven on the trial — in fact, there was no dispute about it in the testimony — that he "killed Cleve Jackson by shooting him with a shotgun."
Appellant's proffered defense was that he fired the shot which took the life of Cleve Jackson in "self-defense," as that term was fully defined to the jury trying the case.
We see no need for our detailing the testimony. That for the State made out a case of murder, as the term is understood, on the part of appellant. Appellant's own testimony, and that of his witnesses, tended to show that he shot in self-defense. None but a jury could resolve the conflicts, and intelligently arrive at a conclusion — a verdict.
The learned trial court gave to the jury a lucid, correct and comprehensive oral charge. This, certainly in connection with the same seventeen requested written charges which were given to the jury, made the law governing their consideration of the testimony perfectly clear. It was peculiarly a jury case. And the strenuous argument by appellant's able counsel that the verdict is not supported in the proper way by the evidence does not impress us.
Even if appellant's written, requested, and refused charge 13 was correct as to its statement of the law — which we doubt (see Allen v. State, 30 Ala. App. 608, 11 So.2d 391) — it was clearly invasive of the province of the jury, inasmuch as the testimony was in dispute, as to whether or not deceased was a trespasser, at the time he was shot and killed. Said charge was refused without error.
Appellant's written, requested and refused charge 20 clearly was calculated to invade the province of the jury. The testimony was in dispute as to its subject matter.
We have literally "searched the record for error," as we conceived our duty to be.
It would be a useless consumption of time and space to discuss each ruling to which exception was reserved. In no instance, in our opinion, is said ruling other than patently correct or innocuous.
The case seems to have been not only correctly, but carefully, tried. And appellant's every right appears to have been scrupulously safeguarded.
The judgment is affirmed.
Affirmed.