Bone v. State

• Decision Date: 13 May 1915
• Docket Number: 792
• Citation: 68 So. 702,13 Ala.App. 5
• Parties: BONE v. STATE.
• Court: Alabama Court of Appeals

68 So. 702

13 Ala.App. 5

BONE v. STATE.

No. 792

Court of Appeals of Alabama

May 13, 1915

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

Willis Bone was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Defendant was charged with killing Joe Walker by shooting him with a gun. The following charges were refused to defendant:

(1) I charge you, gentlemen, that if a man has been threatened by another, and he honestly believes, and there are reasonable grounds for him to believe, that 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 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.

Charges; 9 and 10 are similar to charge 1.

(2) It was the duty of defendant, if he was approached in a dangerous and threatening manner, to retire and escape from conflict, if be could do so without danger to himself. If by flight defendant would apparently leave himself exposed to grievous bodily harm, from which he could not probably escape by flight, then he could stand his ground and defend himself even at the expense of his assailant's life. The law does not require that one who is without fault shall lose his own life that he may thereby spare his assailant.

(6) If, after the jury have considered all the evidence in this case, they have a reasonable doubt as to whether defendant acted in self-defense, they should acquit him.

(8) If the jury believe that Bone went to his home and procured a gun, and in so doing was not actuated by any motive of preparing himself to commence or enter upon a difficulty with Joe Walker, but solely for the purpose of returning the gun to Otto Self, the owner of the gun, and that Bone returned to the place of business of deceased in a peaceable manner, that after he returned he did nothing to remove the former difficulty, or to bring on or provoke the difficulty with Walker, then the mere fact that he had gone home, armed himself and returned would not deprive him of the right of self-defense.

(11) The court charges the jury that prior communicated threats made by deceased against defendant would arm defendant with the right to take more prompt and decisive measures to protect himself from the threatened assault made by deceased upon defendant.

F.E St. John, of Cullman, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

THOMAS, J.

The insistence of appellant's counsel in brief that the court erred in admitting in evidence the testimony of John Richardson is without merit, in the face of the recital in the record that the witness was dead, and that his testimony as offered by the state and allowed in evidence by the court was the testimony of the witness as given on the former trial.

The state proved by the witness Walker a...