McBride v. State

SAMFORD, J. The defendant was indicted on a charge of murder and convicted of manslaughter in the first degree. After the evidence was all in, the court, at the request of the state in writing gave this charge: “I charge you that, if you believe the evidence in this ease beyond a reasonable doubt, you cannot acquit the defendant.” This charge was given by the court upon the theory that the evidence without dispute fixed the homicide as the intentional act of defendant and that the undisputed facts precluded the defendant from interposing the plea of self-defense. It is conceded in brief of counsel for appellant (and we think correctly so) that: “The correctness of giving the general affirmative charge in this case depends on whether there was any evidence tending to support the doctrine of self-defense.” It can hardly be contended that there is any conflict in the evidence that deceased was killed and that, by the defendant, under circumstances related in the testimony in such sort as to constitute the killing unlawful, unless such killing could be justified under the plea of self-defense. Before this defense can avail the defendant to the point of justification, he must be free from fault in bringing on the difficulty ; it must appear that there was a present impending peril to life or limb, and that there was no convenient or reasonable mode of escape by retreat or by declining combat. 8 Mich. Digest, 191, par. 75. That the defendant was not free from fault in provoking or bringing on the difficulty is a burden to be carried by the state and to be established beyond a reasonable doubt. The other two-elements must be shown by the defendant to such a-n extent as to raise in the minds of the jury a reasonable doubt of his guilt. As to the various elements of the doctrine and when it can be invoked, this court has written at length in Cooke v. State, 18 Ala. App. 416, 93 So. 86. With the foregoing rules in mind, let us see if the facts would justify a submission of the plea of self-defense to the jury. Paul Moore, a negro, was in his own home quietly eating his breakfast, about 9 o’clock in the morning; this defendant and Clayton Boss, two white men, came to defendant’s house, without invitation or warrant, the defendant armed with a drawn pistol; the two went to the “gallery,” and defendant called to Moore *510 and “told him he had come ^ after him.” Moore made no reply, whereupon defendant entered the house and the room with his drawn pistol. Moore fled, jumped out of the window, snapped a pistol at Ross as he ran. Defendant pursued Moore, and, coming upon him at the southeast corner of the house, shot him and killed him. The defendant’s testimony was that Moore had a pistol, “trying to work it,” when he met defendant. On the other hand, the state’s witnesses all say that Moore was under the house when defendant shot him. As to which of those statements are true we express no opinion; as we see it, that fact could not affect the question here presented. Every fact imoven in this case and bearing on the question proves beyond any peradventure that the defendant was not free from fault in bringing on this difficulty. When defendant entered Moore’s home without invitailon and in opposition to the will .of the owner, he was a trespasser. When he entered with a drawn weapon and demanded the person of the owner, he invited an attack by Moore, who could legally have ejected him vi et armis. Under the undisputed facts in this case the defendant could not invoke the doctrine of self-defense, first, because the evidence shows without conflict that he was not free from fault in bringing on the difficulty. Crawford v. State, 112 Ala. 1, 21 So. 214; Burton v. State, 141 Ala. 32, 37 So. 435; Lewis v. State, 51 Ala. 1; Wills v. State, 73 Ala. 382; Gilmore v. State, 141 Ala. 51, 37 So. 359; Houston v. State, 203 Ala. 261, 82 So. 503. Passing the question of freedom from fault, there is no evidence in this ease from which the jury could have reasonably drawn the conclusion that the defendant could not have retreated without apparently increasing his peril. Moore was fleteing; he never offered any resistance; the defendant was pursuing and could have abandoned the pursuit at any time without damage to himself. Under the facts, there was never any element of danger to defendant which would have prevented a retreat. Nor does there appear anywhere in the record evidence of a pending necessity on the part of defendant to take the life of Moore. The doctrine of self-defense, is the law of necessity. In its application courts should not so construe its requirements as to work hardships on defendants or to bring the doctrine into disrepute and ridicule by reasonable men. If there is no evidence under the most reasonable construction of the testimony in favor' of defendant’s contention tending to show those elements necessary to the plea then the court is authorized to charge accordingly. Cooke v. State, 18 Ala. App. 416, 93 So. 86. The court did not commit error in giving the written charge requested in writing by the state. It is also contended that the jury should have been permitted to pass upon the question as to whether defendant fired the shot which killed Moore in order to prevent the commission of a felony. We recognize the rule that, under certain circumstances, a party is justified in taking life in order to prevent the commission of a. felony. Suell v. Derricott, 161 Ala. 259, 49 So. 899 et seq., 23 L. R. A. (N. S.) 996, 18 Ann. Cas. 636. But here there is no evidence that Moore was in the act of committing a felony at the time he was killed by defendant; on the contrary he was making every effort to get away from defendant, .who was pursuing him with a pistol. There was no error in refusing to permit the witness Mrs. Ross on redirect examination to answer the question, “In what position was Paul when McBride shot him?” This witness had already testified on this point in her examination in chief, and this question called for a repetition of testimony already given. There were some other exceptions reserved by defendant during the taking of the testimony ; none of these show merit and are not insisted upon in brief of counsel. We find no error in the record, and the judgment is affirmed. Affirmed.