Bailey v. State

• Decision Date: 19 May 1914
• Docket Number: 100
• Citation: 11 Ala.App. 8,65 So. 422
• Parties: BAILEY v. STATE.
• Court: Alabama Court of Appeals

65 So. 422

11 Ala.App. 8

BAILEY v. STATE.

No. 100

Court of Appeals of Alabama

May 19, 1914

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

James R. Bailey was convicted of manslaughter in the first degree and appeals. Reversed and remanded.

The person killed was John Johnson. The exceptions to evidence sufficiently appear in the opinion. The evidence for the state tended to show that an altercation arose between defendant and deceased about 8 o'clock at night, and that, after some words and a blow had passed, deceased went or was carried away from the scene of the difficulty, and a little later returned, when the fatal encounter took place the killing occurring near the place where the first altercation occurred. It further appeared from the evidence of the state that defendant, two other Baileys, and a man named Solomon were together at the time of the killing, and that, while defendant shot first with a pistol, some of the others also participated by firing guns; both shot and bullet wounds being found on the body of deceased. The killing seemed to have occurred near a church, and not far from Bailey's house. The first opprobrious language used seems to have been used by deceased in front of or near Bailey's house.

The defendant requested the court to charge the jury that there was no evidence of a conspiracy in the case, and also to charge that under the facts in this case there was no duty resting upon defendant to retreat.

The following is charge 3:

The court charges the jury that the bare fear of the commission of the offense, to prevent which defendant used 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 he be held accountable, though it would appear afterwards that the indications upon which he acted were wholly fallacies, 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 appearances.

(12) I charge you, gentlemen of the jury, that the law gives a person the same right to use such force as may be reasonably necessary, under the circumstances by which he is surrounded, to protect himself from great bodily harm as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault.

(11) 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 in order for him to have been justified in shooting deceased; that is, if you believe from the evidence that defendant did shoot deceased. Defendant had the right to act upon the appearance of things at the time, taken in connection with the light of all the evidence; and defendant had the right to interpret the conduct of deceased in the light of threats that the evidence shows deceased had made against defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had a right to shoot the deceased in his own defense, although, as a matter of fact, he was not in actual danger; and, if the jury believe that defendant acted under such conditions or circumstances as above set out, the jury should find defendant not guilty.

J.D. Ratcliffe, of Monroeville, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

PELHAM J.

This is the second appeal in this case. Bailey v. State, 4 Ala.App. 7, 58 So. 675.

The evidence set out in the bill of exceptions on this appeal shows the affair to have been one continuous transaction from the time the dispute arose, or difficulty occurred, at or near the church, until the fatal re-encounter occurred in the public road a short time afterwards; and the court was not in error in permitting the state to introduce in evidence the particulars of the difficulty that took place at the church. Nor was it error to allow the state to show, by the doctor who examined the deceased a short time after the killing, the extent and nature of the wounds on the body of the deceased whether they were inflicted as gunshot or pistol shot wounds. It does not follow that, because the...