Bone v. State

• Decision Date: 15 May 1913
• Citation: 62 So. 455,8 Ala.App. 59
• Parties: BONE v. STATE.
• Court: Alabama Court of Appeals

62 So. 455

8 Ala.App. 59

BONE v. STATE.

Court of Appeals of Alabama

May 15, 1913

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

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

The witness Harbin, after testifying to the particulars of the difficulty, was asked what the defendant said after he came out of the door after the shooting, and the witness replied "He said that if we said anything he would kill me."

The following charges were refused to defendant:

"(1) If you believe from the evidence that the defendant went into Walker's place on a peaceful mission, then the mere fact that he did go into such place would not deprive defendant of the right of such defense.

"(2) 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 a threatened assault made by deceased upon defendant.

"(3) Prior communicated threats made by deceased against defendant have a tendency to make defendant take more prompt and decisive measures to protect himself.

"(4) The mere fact that defendant went into Walker's blind tiger would not deprive him of the right to set up self-defense.

"(5) 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 from being taken. He may exclusively use this necessary force to save himself from any felonious assault.

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

"(7) If you believe from the evidence in this case that defendant went into Joe Walker's blind tiger to get whisky, and not for the purpose of provoking the difficulty with Walker, then the fact that he went into such place would not deprive him of the right to set up self-defense.

"(8) If, at the time the fatal shot was fired, the defendant was in danger, real or apparent, of suffering grievous bodily harm from an assault being made upon him by the deceased, and there was no reasonable mode of escape open to him, he would be justified in firing to protect his own life from such grievous bodily harm, if he was free from fault in bringing on the difficulty; and the burden is upon the state to show that the defendant was not free from fault.

"(9) If the jury believe that Bone went to his house and procured a gun, and in so doing was not actuated by any motive of preparing himself to commence or enter upon a difficulty, but solely for the purpose of returning the gun to Otto Self, the owner of said gun, and that Bone returned to the place of business conducted by deceased in a peaceful manner, and that after he returned he did nothing to renew 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.

"(10) The court charges the jury that the law gives a citizen the right to take prompt and decisive steps to defend himself against a felonious assault made against him, if by such assault he is placed in a position of peril of losing his life or of suffering grievous bodily harm, and there is no reasonable mode of escape without increasing his peril, and he is free from fault in bringing on the difficulty, and if the person making the assault had made threats against such person which have been communicated, and is a person reputed to be quarrelsome, dangerous, and bloodthirsty, then the one assaulted would have the right to make more prompt and decisive steps to defend himself from such assault." The authorities cited in appellant's brief as to charge 10 are: Perry v. State, 94 Ala. 30, 10 So. 650, and Roberts v. State, 68 Ala. 156.

"(11) The court charges the jury that if a man has been threatened by another, and he honestly believes that there are reasonable grounds for him to believe that the person threatening him intends to take his life or inflict upon him great bodily harm, then such person would have the right to arm himself for self-protection, to defend himself against any felonious assault made upon him by such person so threatening him; and I further charge you that a person whose life has been threatened does not have to abandon his business and secrete himself, but he had the right under the circumstances hypothesized to arm himself for self-defense and go where his business called him, even though it may be that the person who threatens his life is at that particular place."

Charges 12 and 13 are practically the same as 11.

"(14) 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 the deceased, or that retreating would really increase 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 proved the deceased to have made against the defendant."

J.B. Brown and A.A. Griffith, both of Cullman, for appellant.

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

PELHAM J.

The orders of the court setting the case for trial and providing for copies of the indictment and jury lists to be served on the defendant are in all particulars as required by statute. Acts 1909, p. 319. The defendant's objection that the language used in the order requiring the list of the regular jurors drawn and summoned for "the week during which the defendant's trial is set" to be served on the defendant, not being a compliance with the statute providing that those jurors specially drawn together with "the regular jurors drawn and summoned for the week set for the trial" shall constitute the venire from which the jury to try the defendant shall be selected, is hypercritical. The wording used in the order is practically the exact language of the statute, which provides that the court must enter an order causing a list of the names of all jurors summoned "for the week in which the trial is set," etc., to be served on the defendant. Acts 1909, p. 319. The record affirmatively shows that the proper lists were served on the defendant in obedience to the order of the court.

The defendant's motion to quash the venire because there was a mistake in the name of the juror Whatley, as it appeared on the list served on the defendant, is not well founded, as such a ground, relating to a mistake in the name of a juror, either in the venire or in the list served on the defendant, is not sufficient on which to base a motion to quash the venire. Acts 1909, § 32, p. 320; Longmire v. State, 130 Ala. 66, 30 So. 413.

The defendant's objection to having the juror Whatley put upon him because his name was not on the list of jurors served upon him was removed, for it appears that this juror was challenged by the state for cause before the parties were required to strike the jury from the list furnished for that purpose in the trial of the case. No prejudice resulted to the defendant from having the name of this juror on the list prepared from which the jury was to be selected by striking, although his name was not on the list served upon the defendant, for his name was stricken from the list before the parties were required to strike. White v. State, 62 So. 454, present term.

The examination of the juror on his voir dire is not set out, and the court may presume in support of the correctness of the ruling of the trial court, in the absence of anything to the contrary, that a ground for challenge for cause developed on the examination.

The exception to striking the juror and eliminating his name from the list on the objection of the defendant can avail the defendant nothing as a predicate for...