Opinion
2 Div. 380.
April 5, 1927.
Appeal from Circuit Court, Choctaw County; T. J. Bedsole, Judge.
Steve McCarty was convicted of murder in the second degree, and he appeals. Affirmed.
The following requested charges were refused to defendant:
"(7) The court charges the jury that if, after looking at all the evidence in the case, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of deceased to save defendant from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as would entitle the defendant to an acquittal, and you should so find.
"(8) The court charges the jury that, before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless the jury is so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern or importance to his own interest, then they must find the defendant not guilty.
"(9) The court charges the jury that, if you believe from the evidence that the deceased was of a violent, turbulent, and bloodthirsty character, you are to take such evidence into consideration in determining the degree of the defendant's guilt, provided you find him guilty of any of the degrees of homicide.
"(10) I charge you, gentlemen of the jury, that, if you believe from the evidence that the deceased owed the defendant money for work and labor done, then the defendant had a right to go to see the deceased at his home to see him about such debt."
Gray Dansby, of Butler, for appellant.
Charge 8 was good, and should have been given. 1 Mayfield's Dig. 176; Burton v. State, 107 Ala. 108, 18 So. 284; Brown v. State, 108 Ala. 18, 18 So. 811; Pickens v. State, 115 Ala. 42, 22 So. 551; Boulden v. State, 102 Ala. 78, 15 So. 341. Charge 10 should have been given. De Arman v. State, 71 Ala. 351; 1 Mayfield's Dig. 179. Charge 9 is a good charge. 1 Mayfield's Dig. 176; Karr v. State, 100 Ala. 4, 14 So. 851, 46 Am. St. Rep. 17; Quisenberry v. State, 3 Stew. P. (Ala.) 308; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250. Charge 7 should have been given. Bluett v. State, 151 Ala. 41, 44 So. 84; McCain v. State, 160 Ala. 37, 49 So. 361; Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636; Hubbard v. State, 172 Ala. 374, 55 So. 614.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The exceptions reserved to the introduction of evidence are so clearly without merit that we deem it unnecessary to consider them separately. Appellant, recognizing this, does not insist upon any of them.
Refused charge 7 ignores the doctrine of retreat and freedom from fault. For these reasons it is bad. Gaston v. State,
161 Ala. 37, 49 So. 876; Griffin v. State, 165 Ala. 29, 50 So. 962; Cox v. State, 19 Ala. App. 205, 96 So. 83. Sometimes this charge is properly given and sometimes not, depending on the facts of the particular case. Chaney v. State, 178 Ala. 44, 59 So. 604.
Refused charge 8 was held to be good, and its refusal to be error, in Burton's Case, 107 Ala. 108, 18 So. 284; Brown v. State, 108 Ala. 18, 18 So. 811; Pickens v. State, 115 Ala. 42, 22 So. 551. Since then the holding in the Burton Case, supra, on this point, and as is expressed in the seventeenth headnote, has been overruled, and the charge is now held to be bad. This carries with it the overruling of the other cases cited above. Shorter v. State, 209 Ala. 678, 96 So. 890; Amos v. State, 123 Ala. 54, 26 So. 524; Ratliff v. State, 20 Ala. App. 454, 103 So. 912.
Refused charge 10 is misleading. Whether defendant had a right to go to the house of deceased, even to collect money justly due him, would depend upon many things. Did he go peaceably, unarmed, and without intent to collect by force. The charge might be good argument, but its refusal was not error.
Refused charge 9 was properly refused. The bad character of the deceased is never considered to determine the degree of the crime charged. It is just as much a violation of the law to kill a man of bad character as it is to kill one of good character, though a man is authorized to act more promptly in dealing with a man of known bad character for peace and quiet. Karr v. State, 100 Ala. 4, 14 So. 851, 46 Am. St. Rep. 17.
We find no error in the record, and the judgment is affirmed.
Affirmed.