Bostic v. State

• Decision Date: 25 February 1892
• Parties: BOSTIC v. STATE.
• Court: Alabama Supreme Court

10 So. 602

94 Ala. 45

BOSTIC v. STATE.

Supreme Court of Alabama

February 25, 1892

Appeal from circuit court, Limestone county; H. C. SPEAKE,, Judge.

Richard Bostic was indicted with John Puryear for the murder of Jesse Brock. A separate trial of Bostic resulted in his conviction of manslaughter in the second degree, from which he appeals. Affirmed.

W T. Sanders and W. H. Turrentine, for appellant.

Wm. L. Martin, Atty Gen., for the State.

STONE C.J.

It is said in 4 Bl. Comm. 213, that "homicide committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature, and also by the law of England, as it stood so early as the time of Bracton, and as it was declared by statute, (24 Hen. VIII., c. 5.) If any person attempts a robbery or murder of another, or attempts to break open a house in the night-time, (which extends also to an attempt to burn it,) and be killed in such attempt, the slayer shall be acquitted and discharged." Greenleaf states the doctrine substantially the same way. 3 Greenl. Ev § 115. In Gray v. Combs, 7 J. J. Marsh 478, this subject was discussed, and the authorities cited. And the subject has been frequently considered in this state. The principle declared is somewhat analogous to that laid down in the older books. In Oliver's Case, 17 Ala. 594, (opinion by DARGAN, C.J.,) is this language: "The law, it is true, will justify the taking of life when it is done from necessity, to prevent the commission of a felony," etc. See, also, Dill v. State, 25 Ala. 15; Noles v State, 26 Ala. 31; Simpson v. State, 59 Ala. 1; Storey v. State, 71 Ala. 329. Modern decisions have hedged this principle about with some modifying qualifications. If the defense be that the blow was struck to prevent the homicide of another, then that other, as well as the actor, must be in a condition to invoke the doctrine of justifiable defense. Neither he who provokes a difficulty nor his voluntary helper can with impunity resist to extreme results the assault he has provoked, unless he has clearly retired from the conflict; and, to restore him to the full measure of se defendendo, his conduct must plainly show that his purpose has ceased to be hostile. Gibson v State, 91 Ala. 64, 9 South. Rep. 171; Parker v. State, 88 Ala. 4, 7 South. Rep. 98. After night-fall the defendant and Puryear, with two others, went together to the house in which the difficulty occurred. Before reaching the house they learned that deceased was there. Soon after entering the dwelling the altercation commenced. Its first introduction was an inquiry by Puryear, addressed to Brock, asking him why it was that he (Brock) had spoken of him (Puryear) in the manner he had. He answered that what he had said would stand. Very soon Puryear addressed Brock in angry and offensive language, whereupon the latter drew a pistol, and attempted to shoot Puryear. He fired once, the ball passing through Puryear's clothes, and was pursuing him, snapping his pistol at him, but it did not fire. Puryear ran out at the door, Brock pursuing him, when the defendant, Bostic, attempted to disarm him. While he was grappling for the pistol, Brock was struck on the head with a hard substance, probably a rock, which felled him to his knees, and the combat then ceased. Three days afterwards Brock died, and the attending physician gave it as his opinion that the blow on the head caused his death. Up to this point there was no material discrepancy in the testimony. On some very material inquiries the testimony is irreconcilable. Some witnesses testified that when Puryear and his friends were approaching the house in which the difficulty occurred, and after they learned Brock was there, Puryear remarked, "I expect we will have it to-night," and that Bostic said if he did he would stand up to him. Bostic, in his testimony, denied this. There was testimony that Bostic struck the blow which proved fatal, while he and some other witnesses testified that he did not; and there was testimony that when Puryear fled from the house he seized a pole, and was returning into the house to renew the rencounter. On this question the testimony was by Puryear himself, and there was no testimony that, after the combat commenced, Puryear made any remark of any kind. His intention in leaving the house must, therefore, be gathered from what ...