Barnum v. State, 6 Div. 414.

• Decision Date: 30 June 1939
• Docket Number: 6 Div. 414.
• Citation: 28 Ala.App. 590,190 So. 310
• Parties: BARNUM v. STATE.
• Court: Alabama Court of Appeals

190 So. 310

28 Ala.App. 590

BARNUM v. STATE.

6 Div. 414.

Court of Appeals of Alabama

June 30, 1939

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Robert alias Bob, Barnum was convicted of murder in the second degree, and he appeals.

Affirmed.

Norman Gunn, of Jasper, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

BRICKEN Presiding Judge.

On the trial of this case in the court below, a large number of witnesses were examined, and the record here, as a consequence, is voluminous. However, pending the entire trial, that is to say, the taking of the testimony, but four exceptions were reserved to the rulings of the court. We have examined and considered each of said exceptions; no semblance of error appears in either of the court's rulings complained of in this connection. We refrain from a discussion in detail as to these matters for the reason stated.

Appellant as the record discloses, was a man about 57 years of age, and somewhat infirm. The deceased was a young man of the neighborhood about 19 years of age, and without dispute or conflict it appears from the evidence, that appellant killed deceased by shooting him in the back three times with a pistol.

This appellant was indicted for, and convicted of, the offense of murder in the second degree as a result of said killing, and the jury fixed his punishment at imprisonment for ten years; whereupon, the court adjudged him guilty of murder in the second degree, and in accordance with the verdict sentenced him to imprisonment in the penitentiary for ten years. From the judgment of conviction pronounced and entered, this appeal was taken.

After a careful perusal of all the evidence, and an attentive consideration thereof, we are of the opinion it would be difficult to conceive of a fairer trial than was accorded this appellant by the learned trial judge who presided.

In addition to the admitted killing hereinabove described, the State offered evidence of grievous threats made by the defendant, two or three days before he killed the deceased. This was denied by appellant when testifying in his own behalf. The defendant claimed he shot in self-defense and offered some slight evidence to sustain this insistence. On the trial the court allowed defendant a much wider latitude than he was entitled to. Notably, before any testimony tending to show self-defense was offered, the defendant was permitted to examine numerous witnesses on the question of the bad character of the deceased for peace and quietude. This was not competent, at the time it was offered, for under the law such evidence is incompetent in the absence of any evidence tending to show that the killing was in self-defense. As stated, the trial court was exceedingly fair to the defendant throughout the entire trial and in every ruling of the court the substantial rights of the accused were meticulously safeguarded. The conflict in the evidence, of course, was for the determination of the jury. It was under the law, the prerogative of the jury to fix the punishment upon conviction, and to our minds the jury were indeed merciful to the aged defendant in this connection.

The killing of Alvis by defendant being admitted, the only issue involved upon this trial, was whether he was justified in so doing under the law of self-defense, and in this case the death wounds being, as stated in the back of deceased, would, of necessity, tend to show that, at the time the fatal shots were fired, the defendant could not have been in imminent danger of suffering death or grievous bodily harm at the hands of deceased. Angling v. State, 137 Ala. 17, 34 So. 846; Wright v. State, 22 Ala.App. 376, 115 So. 852; Riddle v. State, 25 Ala.App. 142, 142 So. 680. This, however, was for the jury under the evidence in the case. The law is, unless the defendant was in such danger, real or apparent, his right of self-defense must fall, and the questions of retreat or freedom from fault need not be entered into.

The only remaining questions involved on this appeal have reference to the action of the court in the refusal to defendant of three special written charges. The following argument of the Attorney General, in his brief, in this connection is hereby approved, and adopted as a part of this opinion.

"On the trial of this cause, the appellant requested the court to give twenty-five written charges to the jury in his behalf. Twenty-two of these...