Bragg v. State

• Decision Date: 21 April 1938
• Docket Number: 4 Div. 20.
• Citation: 236 Ala. 270,183 So. 682
• Parties: BRAGG v. STATE.
• Court: Alabama Supreme Court

183 So. 682

236 Ala. 270

BRAGG v. STATE.

4 Div. 20.

Supreme Court of Alabama

April 21, 1938

Rehearing Denied June 16, 1938.

Certiorari to Court of Appeals.

John H (alias Johnnie) Bragg was convicted of an offense, and appealed to the Court of Appeals. To review and revise a judgment and decision of the Court of Appeals, 183 So. 680 reversing the judgment of conviction, the State, by its Attorney General, applies for certiorari.

Writ awarded; reversed and remanded.

A. A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

J. C. Fleming and J. M. Rowe, both of Elba, for respondent.

GARDNER Justice.

The reversal of the judgment of conviction by the Court of Appeals is rested upon the refusal of charge 6, requested by defendant, and reproduced in the opinion of that court.

That the concluding clause as to the burden of proof resting upon the State, under the stated circumstances, to show defendant was not free from fault, stated a correct principle, is of course well understood, and not here controverted. Bluitt v. State, 161 Ala. 14, 49 So. 854; Richardson v. State, 191 Ala. 21, 68 So. 57.

But in consideration of refused charges, to save error, the rule of strict construction has been here approved, Jebeles-Colias Confectionery Co. v. Booze, 181 Ala. 456, 62 So. 12, and it has been held enough to justify the refusal of a charge that it does not speak "in the correct and appropriate terms of the law." Ex parte State, ex rel. Atty. Gen., Bush v. State, 211 Ala. 1, 100 So. 312.

The State insists the charge is subject to criticism for a failure to qualify defendant's belief as an honest belief, as so designated in Bluitt v. State, supra; Mathews v. State, 136 Ala. 47, 33 So. 838; Tyler v. State, 207 Ala. 129, 92 So. 478; Cheney v. State, 172 Ala. 368, 371, 55 So. 801; Walker v. State, 220 Ala. 544, 126 So. 848; O'Rear v. State, 188 Ala. 71, 66 So. 81.

The point is well taken. Charge 27 considered in Davis v. State, 214 Ala. 273, 107 So. 737, 741, is in all respects substantially the same as charge 6 herein. And speaking of this charge, the opinion in the Davis Case, supra, said: "Charge 27 was properly refused. It was defective, as this court has often held, because it omitted to state that the belief of necessity to kill must be honestly entertained as well as reasonable. Griffin v. State, 165 Ala. [29] 45, 50 So. 962." Further elaboration is unnecessary. We may add, however, that charge 6 is also disapproved upon another and different ground in Hudson v. State, 217 Ala. 479, 116 So. 800, where disapproval was expressed of the opinion of the Court of Appeals in this respect rendered in Thomas v. State, 18 Ala.App. 493, 93 So. 287. See, also, Ex parte Owen, 223 Ala. 467, 137 So. 311, and Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022.

As to charge 7, the opinion of the Court of Appeals states that it involves the same principle as presented in charge 6. Whether there is material difference so far as this latter point, as found in Hudson v. State, supra, is concerned, we need not stop to inquire, as the argument both for the State and the defendant is confined to the question of the necessity of an honest belief in charges relating to apparent danger. Defendant insists that charge 7 (copied in brief) does not relate to apparent danger, and cites our authorities Walker v. State, 220 Ala. 544, 126 So. 848; O'Rear v. State, 188 Ala. 71, 66...