Arp v. State

• Decision Date: 26 January 1893
• Citation: 97 Ala. 5,12 So. 301
• Parties: ARP v. STATE.
• Court: Alabama Supreme Court

12 So. 301

97 Ala. 5

ARP v. STATE.

Supreme Court of Alabama

January 26, 1893

Appeal from circuit court, Cherokee county; John B. Tally, Judge

Sherman Arp was convicted of murder in the first degree, and sentenced to be hanged, from which he appeals. Affirmed.

Two special instructions asked by defendant were refused; the first is copied in the opinion, and the second is in the following language: (2) "If the jury do not believe from the evidence beyond all reasonable doubt that the defendant killed deceased from a present impending necessity, or from belief of a present impending necessity, then he is not guilty of murder."

R. B Smyer, for appellant.

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

At the July term, 1892, of the circuit court the defendant was convicted of murder in the first degree, and sentenced to suffer death. The defendant moved to quash the venire summoned-First, because some of the jurors summoned on the special venire had served as regular jurors during the preceding week; second, because William Jackson, who was summoned as a regular juror for the week, had not been a resident of the state or county for the preceding 12 months third, because one C. H. McCullough, whose name appears on the venire, served as a regular juror at the January term 1892. These several motions were properly overruled. Crim. Code, § 4301; Fields v. State, 52 Ala. 351; Gibson v. State, 89 Ala. 126, 8 South. Rep. 98. The objections to the impaneling of the jury were as follows: First, that one of the jurors drawn failed to answer, it appearing that said juror was at that time serving as a juror on another case, and was out considering that case; the second objection is the same as the first; third, that one of the jurors drawn had not been a resident of the state or county for the past preceding 12 months, and was executed for cause; fourth, that one of the persons whose name was drawn, who had been summoned to serve as a juror, failed to answer when called; fifth, that one of the persons summoned as a juror was over the age of 70, who was challenged by the state for cause; sixth, that one of the persons summoned, on his examination as to his competency stated that he had heard a part of the evidence at a preliminary examination of the defendant, and from that evidence had formed an opinion as to the guilt or innocence of the defendant, but that, in his judgment, said opinion would not bias his verdict. Upon this statement, the court pronounced the person competent to serve as a juror. Each of these objections have been adjudicated by this court, and declared to be without merit. See the following authorities: On the first proposition, Johnston v. State, 10 South. Rep. 667, and authorities cited; on the third proposition, Fields' Case, supra, and Gibson's Case, supra; on the fourth, Johnston v. State, supra; on the fifth, Crim. Code, § 4331, subd. 8; on the sixth, Hammil v. State, 90 Ala. 577, 8 South. Rep. 380. Neither of the objections is within the principle decided in the case of McQueen v. State, 94 Ala. 52, 10 South. Rep. 433, or of Darby v. State, 92 Ala. 9, 9 South. Rep. 429.

The confessions of the defendant were voluntarily made, and were properly admitted. Moreover, the defendant himself, who testified in his own behalf, did not deny they were voluntarily made, but himself testified substantially as true the main fact given in evidence as confessions. The testimony of the defendant and the evidence admitted as confessions showed that he took the life of the deceased without provocation on the part of the deceased, and when there was no real or apparent necessity for the act, so far as such necessity proceeded from the deceased. According to his own statement, the object to be accomplished by taking the life of the deceased was to prevent deceased from appearing as a witness against him and one Buckhalter and Leith, charged with retailing whisky without a license. The defendant's excuse for the homicide was that Buckhalter and Leith threatened to take his life unless he killed deceased; that they were present, armed with double-barrelled shotguns, and threatened to kill him unless he killed deceased, and that it was through fear and to save his own life he struck deceased with an axe. He admits that after having struck deceased down, he rifled the pockets, and took what money was found in the pockets of the deceased. On this phase of the evidence the court was asked to give the following charge: "If the jury believe from the evidence that the defendant killed Payne under duress, under compulsion from a necessity, under threats of immediate impending peril to his own life, such as to take away the free agency of the defendant, then he is not guilty." The court refused this charge, and the refusal is assigned as error. This brings up for consideration the question: What is the law, when one person, under compulsion or fear of great bodily harm to himself, takes the life of an innocent person; and what is his duty, when placed under such circumstances? The fact that defendant had been in the employment of Buckhalter is no excuse. The command of a superior to an inferior, of a parent to a child, of a master to a servant, of a principal to his agent, will not justify a criminal act, done in pursuance of such an act. 1 Bish. Crim. Law, § 355; Reese v. State, 73 Ala. 18; 4 Bl. Comm. § 27. In a learned discussion of the question, to be found in (Com. v. Neal,) 1 Lead. Crim. Cas. p. 81, and note, page 91, by Bennett and Heard, it is declared that, "for certain crimes the wife is responsible, although committed under the compulsion of her husband. Such are murder," etc. To the same effect is the text in 14 Amer. & Eng. Enc. Law, p. 649, and this court gave sanction to this rule in Bibb v. State, 94 Ala. 31, 10 South. Rep. 506. In Ohio a contrary rule prevails in regard to the wife. Davis v. State, 15 Ohio, 72. In Arkansas there is a statute specially exempting married women from liability when "acting under the threats, commands, or coercion of their husbands;" but it was held under this act, there was no presumption in favor of the wife accused of murder, and that it was incumbent on her to show that the crime was done under the influence of such coercion, threats, or commands. Edwards v. State, 27 Ark. 493, reported by Green in 1 Crim. Law, p. 741.

In the case of Beal v. State, 72 Ga. 200, and also in the case of People v. Miller, 66 Cal. 468, 6 P. 99, the question arose upon the sufficiency of the testimony of a witness to authorize a conviction for a felony, it being contended that the witness was an accomplice. In both cases the witness was under 14 years of age. It was held that if the witness acted under threats and compulsion, he was not an accomplice. The defendants were convicted in both cases. In the case of Rex v. Crutchley, 5 Car. & P. 133, the defendant was indicted for breaking a threshing machine. The defendant was allowed to prove that he was compelled by a mob to go with them, and compelled to hammer the threshing machine; and was also permitted to prove that he ran away at the first opportunity. In 1 Hawk. P. C. c. 28, § 26, it is said: "The killing of an innocent person in defense of a man's self is said to be justifiable in some special cases; as if two be ship-wrecked together, and one of them get upon a plank to save himself, and the other also, having no other means to save his life, get upon the same plank and, finding it not able to support them both, thrusts the other from it, whereby he is drowned, it seems that he who thus preserved his own life at the expense of that other may justify the fact by the inevitable necessity of the case." In 1 Hale, P. C. c. 8, pp. 49, 51, it is said: "There is to be observed a difference between the times of war or public insurrection or rebellion, *** when a person is under so great a power that he cannot resist or avoid, the law in some cases allows an impunity for parties compelled or drawn by fear of death to do some acts in themselves capital, which admit no excuse in time of peace. *** Now, as to times of peace, if a man be menaced with death, unless he will commit an act of treason, murder, or robbery, the fear of death doth not excuse him if he commit the act, for the law hath provided a sufficient remedy against such fears by applying himself to the court and officers of justice for a writ or precept de securitate pacis. Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than kill an innocent; but, if he cannot otherwise save his own life, the law permits him, in his own defense, to kill the assailant." 4 Bl. Comm. § 30, declares the law to be: "Though a man be violently assaulted, and has no other possible means of escaping death...