60 So.2d 818 (Ala. 1952), 6 Div. 387, Johnson v. State

Docket Nº:6 Div. 387.
Citation:60 So.2d 818, 257 Ala. 644
Opinion Judge:GOODWYN, Justice.
Party Name:JOHNSON v. STATE.
Attorney:David McKay Enslen, Fayette, for appellant. Si Garrett, Atty. Gen., L. E. Barton, Asst. Atty. Gen. and Chas. C. Carlton, Montgomery, of counsel, for the State.
Case Date:October 09, 1952
Court:Supreme Court of Alabama
 
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Page 818

60 So.2d 818 (Ala. 1952)

257 Ala. 644

JOHNSON

v.

STATE.

6 Div. 387.

Supreme Court of Alabama.

October 9, 1952

[257 Ala. 645] David McKay Enslen, Fayette, for appellant.

Si Garrett, Atty. Gen., L. E. Barton, Asst. Atty. Gen. and Chas. C. Carlton, Montgomery, of counsel, for the State.

The following charges were refused to defendant:

'(A). If the deceased made a sudden, unprovoked, murderous attack upon defendant, the deceased at the time being armed with a deadly weapon, and, in the act of effectuating upon the defendant his murderous purpose, and after considering all the evidence in the case you find this to be true, then I charge you that the defendant was under no duty to retreat but had the right to stand his ground and to kill his assailant.

'(B). I charge you, Gentlemen of the Jury, that a citizen may repel force by force in defense of his person against one who manifestly intends or endeavors by violence or surprise to take his life, and if the defendant was entirely free from fault in bringing on the difficulty and did not enter the fight willingly and in good faith believing that he was in imminent peril, the defendant was not obliged to retreat and under such circumstances defendant had the right to take the life of the deceased.'

GOODWYN, Justice.

Lewis Johnson was indicted for and convicted of murder in the second degree, and, as punishment therefor, was sentenced to imprisonment in the penitentiary for twenty-five years.

The tendency of the State's evidence was that the defendant made an unprovoked assault upon the deceased, Esau Wilson, by hitting him with his fist, thereby breaking the deceased's neck and causing his death. There was no dispute that defendant struck the deceased with his fist 'about five times'. The theory of the defense was that the deceased provoked the difficulty and was the aggressor; that he 'kidded' the defendant about defendant's wife, and cursed him and came at him with an open knife; that nothing happened immediately prior to the difficulty to indicate that deceased would attack the defendant; that the attack was sudden and unprovoked; that the knife with which deceased was armed was a deadly weapon; and that he hit the deceased only in self-defense.

Page 819

The defendant is not represented by counsel on this appeal, but was ably represented at the arraignment and trial by counsel appointed by the trial court. Accordingly, no brief has been filed on his behalf. But this is not essential to a consideration by this Court of an appeal by a defendant in a criminal case. Code 1940, Tit. 15, § 389; Hymes v. State, 209 Ala. 91, 92, 95 So. 383.

In discussing section 3258 of the Code of 1923, which is included in the Code of [257 Ala. 646] 1940 as section 389 of Title 15, Mr. Justice Brown, in the case of Wesson v. State, 238 Ala. 399...

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