Opinion
8 Div. 966.
June 27, 1934.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Ambrose Hopkins was convicted of murder in the second degree, and he appeals.
Affirmed.
The following charges were refused to defendant:
"1. It is not necessary under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he killed deceased, or that retreating would have really increased his peril in order for him to have been justified in shooting; he had the right to act on the appearance of things. If the circumstances attending the killing are such as to justify a reasonable belief that defendant was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril and he honestly believed such to be the case, then he had a right to shoot in his own defense; although as a matter of fact, he was not in actual danger, and retreat would not have endangered his personal safety. And if the jury believes that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and if not shown, they should acquit the defendant.
"2. Before you can convict the defendant the proof should be consistent with every other reasonable supposition except the guilt of the defendant and the jury should be so convinced from the evidence that each of them would be willing to act on such evidence in matters of highest concern and importance to their own interest, or they cannot find the defendant guilty."
"9. The court charges the jury that if the defendant shot believing that his life was in danger and had under all the circumstances reasonable cause to believe that he was in imminent danger at the moment the shot was fired, then the defendant cannot be convicted."
"15. The court charges the jury that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of guilt of the defendant; that before you can convict this defendant the evidence must be so strong that it convinces each juror of defendant's guilt beyond all reasonable doubt, and if after a consideration of all the evidence a single juror has a reasonable doubt of defendant's guilt, then you cannot find the defendant guilty."
"17. A person may fight willingly if he is free from fault in bringing on the difficulty, and there is no reasonable mode of escape open to him without increasing his danger, provided he uses only such force as is necessary to defend himself against the assault made upon him, and if the assault was felonious and such as to imperil his life or his person with serious harm, or reasonably appeared so at the time to him, he then would be justified in killing his assailant."
"25. The defendant enters into the trial with the presumption of innocence, and this is a fact in the case which must be considered with all the evidence and should not be disregarded."
"28. The court charges the jury that the bare fear of the commission of the offense, to prevent which defendant uses a deadly weapon, is not sufficient to justify it but the circumstances must be sufficient to excite the fears of a reasonable man, and the attacking party must have acted under the influence of such fears, alone. It is not necessary, however, to justify the use of a deadly weapon, that the danger be actual. It is enough that it be apparent danger; such an appearance as will induce a reasonable person in defendant's position to believe that he was in immediate danger of great bodily harm; upon such appearance the party may act with safety, nor will be held accountable, though it would appear afterwards that the indications upon which he acted were entirely fallacious and that he was in no actual peril. The rule in such case is this: what would a reasonable person, a person of ordinary caution, judgment and observation, in the position of defendant, seeing what he saw, and knowing what he knew, honestly believe from the situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in such imminent danger, then defendant would be justified in believing himself in such peril, and in acting upon such appearance."
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Charges 1 and 9, refused to defendant, were not predicated upon the fact defendant acted as a reasonable man, and they omit to hypothesize freedom from fault in bringing on the difficulty. They were properly refused. Pelham v. State, 24 Ala. App. 330, 134 So. 888; Id., 223 Ala. 155, 134 So. 890. Charge 2 is bad as being based on a reasonable supposition. Ward v. State, 21 Ala. App. 551, 109 So. 897; Prince v. State, 215 Ala. 276, 110 So. 407. Charge 15 was properly refused as being based upon the reasonable doubt of an individual juror. Brasher v. State, 21 Ala. App. 255, 107 So. 230; Hudson v. State, 217 Ala. 479, 116 So. 800. Charge 17 is not predicated upon the accused's acting as a reasonable man. Newman v. State, 25 Ala. App. 526, 149 So. 724. Charge 25 was misleading. Chaney v. State, 178 Ala. 44, 59 So. 604. But see Harris v. State, 25 Ala. App. 215, 143 So. 242 . Nevertheless this charge was covered by the oral charge and given written charges. Charge 28 was confusing, misleading, and argumentative. It is not predicated upon the duty to retreat, and is not based on the evidence Newman v. State, supra. Furthermore, the substance of the various charges was fairly and substantially covered in the oral charge and written given charges. Code 1923, § 9509.
The indictment charged this appellant with the offense of murder in the first degree, specifically, that "he unlawfully and with malice aforethought killed Boyce Colbert by shooting him with a pistol," etc.
Pending the trial no exceptions were reserved to any ruling of the court. The only point of decision here presented is the action of the court in refusing several written charges requested by defendant.
The killing of the deceased named in the indictment by this appellant is admitted. It is also without dispute that he killed him by shooting with a pistol by firing two shots into his body. The defendant relied upon self-defense as a justification, and there was evidence to sustain this insistence. The evidence offered by the state tended to make out a case of murder. The ill will of defendant toward the deceased manifested by evidence of previous threats to kill him was sufficient, if believed by the jury beyond a reasonable doubt, to justify the jury in finding that the killing was malicious. All these questions under the evidence were for the jury to determine; hence the general affirmative charge had no place in this case.
Requested charges Nos. 1 and 9 were properly refused as not being predicated upon the fact that the accused acted as a reasonable man. They also omit to hypothesize the accused's freedom from fault in bringing on the difficulty. Pelham v. State, 24 Ala. App. 330, 134 So. 888, certiorari denied 223 Ala. 155, 134 So. 890.
Requested charge No. 2 was properly refused as being based on a reasonable supposition. Ward v. State, 21 Ala. App. 551, 109 So. 897; Prince v. State, 215 Ala. 276, 110 So. 407.
Refusal to give requested charges Nos. 11 and 27 was not error, as the substance of the said charges was covered in the court's oral charge defining the various degrees of homicide.
Requested charge No. 15 was properly refused as being predicated upon the reasonable doubt of an individual juror. Brasher v. State, 21 Ala. App. 255, 107 So. 230; Hudson v. State, 217 Ala. 479, 116 So. 800.
Requested charge No. 17 was properly refused as not being predicated upon the accused's acting as a reasonable man. It also is not confined to the evidence. Newman v. State, 25 Ala. App. 526, 149 So. 724.
Requested charge No. 25 was properly refused as being misleading. Said charge was approved in Chaney v. State, 178 Ala. 44, 59 So. 604; but see Harris v. State, 25 Ala. App. 215, 143 So. 242 . Nevertheless, the substance of same was clearly covered in the court's oral charge and requested charges given.
Requested charge No. 28 was properly refused as being confusing, misleading, and argumentative. Moreover, said charge is not predicated upon the duty to retreat and is not based on the evidence. Newman v. State, 25 Ala. App. 526, 149 So. 724.
Furthermore, the substance of the various requested charges was fairly and substantially covered in the court's oral charge and charges given at the request of the defendant. Section 9509, Code of Alabama, 1923.
There being no error in any ruling of the court of a reversible nature, and the record proper being regular and without error, the judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.