Black v. State

• Decision Date: 04 June 1912
• Citation: 59 So. 692,5 Ala.App. 87
• Court: Alabama Court of Appeals
• Parties: BLACK v. STATE.

59 So. 692

5 Ala.App. 87

BLACK v. STATE.

Court of Appeals of Alabama

June 4, 1912

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

George Black was indicted for murder in the first degree and convicted of manslaughter, and he appeals. Reversed and remanded.

The facts sufficiently appear from the opinion. The following are the charges discussed in the opinion:

(4) "It is not necessary, under the evidence in this case that the defendant should have been actually in danger of death or great bodily harm at the time he killed the deceased, or that retreating would have really increased his peril, in order for him to have been justified in shooting the deceased. He had the right to act on the appearance of same, taken in the light of any threats that the evidence proves the deceased to have made against the defendant. If the circumstances attending the killing are such as to justify a reasonable belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, 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 retreat would not have endangered his personal safety; and, if the jury believe that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the state, and, if not shown, they could acquit the defendant."

(10) "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."

(32) "The bare fear of the commission of the offense, to prevent which the 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 appearances the party may act with safety; nor will he be held accountable, though it would afterwards appear that the indication upon which he acted was wholly fallacious, and that he was in no actual peril. The rule in such a case is this: What would a reasonable person, a person of ordinary caution, judgment, and observation, in the position of the defendant, seeing what he saw and knowing what he knew honestly believe from this situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril, and in acting upon such appearance."

(34) "I charge you, gentlemen of the jury, that if a man has been threatened by another, and he honestly believes, and there are reasonable grounds for him to believe, that the deceased intended to take his life, or to inflict upon him great bodily harm, then such person would have a right to arm himself for self-protection, provided his purpose was merely to defend himself from an assault or an attack by such person so threatening him. And I further charge you that, under such circumstances, a person thus threatened would have the right to go even to places where the party who had threatened his life then was, if such going was upon or for the purpose of attending to business. In other words, a person thus threatened does not have to abandon his business and secrete himself, but has the right, under the circumstances above set forth, to arm himself for self-protection and go where his business calls him, even though it may be that the person who threatens his life is at that particular place."

W. R Walker and Wall & Rankin, all of Athens, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

PELHAM, J.

The defendant was indicted and tried for murder in the first degree and convicted of manslaughter.

So far as necessary to a proper understanding of the trial court's rulings and the opinion in the case, the following summary of the substance of the evidence will be sufficient: Coy Hardy, a young son of the deceased, was in charge of and in his father's wagon, which was standing on one of the streets in the town of Athens, near the curbing to the pavement, in front of a store, when the defendant drove up to the...