Birt v. State

• Decision Date: 14 May 1908
• Citation: 156 Ala. 29,46 So. 858
• Parties: BIRT v. STATE.
• Court: Alabama Supreme Court

46 So. 858

156 Ala. 29

BIRT v. STATE.

Supreme Court of Alabama

May 14, 1908

Appeal from City Court of Gadsden; Alto V. Lee, Judge.

Ernest Birt was convicted of manslaughter in the first degree, and appeals. Reversed and remanded.

The facts are sufficiently stated in the opinion of the court. The following charges were requested by the state:

"(1) The court charges the jury, if, after considering all the evidence in this case, the jury should believe beyond a reasonable doubt that defendant arrested the deceased, took his pistol from him, and carried him to the guardhouse, and when they arrived at the guardhouse the defendant ordered the deceased to enter, and the deceased refused, and thereupon defendant attempted to put the deceased in said guardhouse by force, and while attempting to so imprison deceased the defendant shot deceased, and said shooting was not done to repel force or assault from deceased, then the defendant is guilty of some degree of homicide charged in the indictment, and it will be your duty to so find.

"(2) If the jury believe from the evidence beyond a reasonable doubt that defendant, after having arrested deceased, and after having taken from him his weapon, carried deceased to the guardhouse, and for the purpose and with the determination to lock deceased up or kill him in the attempt so to do, and while attempting to lock deceased in the guardhouse, shot him to death, and that such killing was not made necessary to protect the life of defendant from death or great bodily harm, or what so reasonably appeared to a reasonable man, then I charge you, gentlemen you cannot acquit defendant, but must find him guilty of some degree of homicide charged in the indictment.

"(3) The court charges the jury it was the duty of defendant to use all reasonable means to put the prisoner, the deceased in the guardhouse without doing him any bodily harm; and if the jury should believe from the evidence the defendant could have, by the exercise of reasonable diligence, confined deceased in the guardhouse without shooting him, as was done then he would be guilty of some degree of homicide charged in the indictment, and it is the duty of the jury to so find.

"(4) If the jury believe from the evidence beyond a reasonable doubt that defendant, after having arrested deceased and taking from him his pistol, carried deceased to the guardhouse, and after refusing propositions to make bond, if you believe such propositions meant bail, were made, and in pursuance of a determination to lock deceased up, and not in repelling force by force, or what reasonably appeared to be force, then I charge you that defendant is guilty of some degree of homicide charged in the indictment, and you must so find by your verdict.

"(5) The court charges the jury, if, after weighing all the evidence, they believe beyond a reasonable doubt that defendant took the life of deceased in pursuance of a determination to lock the deceased up, because deceased had declared he would not be locked up, and that the killing of deceased was not in defense of defendant's person, then the defendant cannot be held harmless, and he is guilty of some degree of homicide charged in the indictment.

"(6) If the jury should believe beyond a reasonable doubt from the evidence in this case that the defendant, after hearing of the numerous alleged threats of the deceased, became offended and sought an opportunity to avenge himself against some wrong or fancied grievance against deceased, and acting under color of official duty arrested deceased and took him to the guardhouse, for the purpose of not only confining deceased, but with a determination to avail himself of an opportunity to kill deceased, and after reaching the guardhouse with deceased the defendant killed deceased by shooting him with a pistol, and such shooting was done not in self-defense, as that term has been defined in my oral charge, then he would be guilty of murder, and it would be your duty to so find.

"(7) The court charges the jury, if, after considering all the evidence in the case, they should believe beyond a reasonable doubt that the defendant killed deceased after the deceased had been arrested, and when deceased had been carried to the guardhouse and had been relieved of his arms, and that the killing was done by defendant to prevent escape of deceased, or to gratify some ill will defendant entertained towards deceased, and not in self-defense, as defined by the court, then and in either event the defendant cannot be held harmless before the law and must be convicted of some degree of homicide."

"(9) Before the jury can hold the defendant harmless for taking the life of deceased, they must find from the evidence as follows: First, that the defendant was at the time of making the arrest an officer clothed with legal authority to make the arrest of the deceased and detain him in the guardhouse of Attalla; second, that the defendant acted in good faith and within the scope of his official duty, and used only reasonable and proper means in making the arrest, and in his efforts to detain the prisoner, and while thus in the exercise of his official duty was assaulted by deceased, and used only such means in repelling the assault as was or appeared to be necessary for the protection of defendant's life or his person from grievous bodily harm. And if the defendant used more force than was necessary, or appeared to be necessary, to repel the assault alleged to have been made upon him by the deceased, and took his life when by the exercise of caution and diligence he might have avoided the killing, then, gentlemen, I charge you the defendant is guilty of some degree of homicide charged in the indictment, and it is your duty to so find."

"(11) In order for the defendant to find any protection or justification for taking the life of deceased by reason of the official position which the defendant is alleged to have held at the time of the killing, the defendant must have acted in good faith and within the scope of his official duties; and if you...