Brake v. State

• Decision Date: 05 June 1913
• Parties: BRAKE v. STATE.
• Court: Alabama Court of Appeals

63 So. 11

8 Ala.App. 98

BRAKE v. STATE.

Court of Appeals of Alabama

June 5, 1913

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

John Brake was convicted of manslaughter in the first degree, and appeals. Affirmed.

Defendant was charged with killing Ernest Brothers, the state's theory being that defendant was an employé at Anders' livery stable, and that as Brothers ran out of the stable he was closely pursued by defendant, who shot at him once, and then shot twice more in rapid succession, one bullet entering the right shoulder blade, passing through the body, and coming out in front of the left shoulder. It appears that Brothers and Brake were in the livery stable a few moments before the shooting, and that Brothers was cursing Brake that they came out of the stable, Brothers in front and Brake following, and that Brothers stopped with his right side to Brake, and was cursing when Brake fired, but that Brothers was going slowly away from Brake when he fell. The evidence for defendant tended to show threats made by Brothers against Brake because of the fact that Brake had informed on the mother-in-law of Brothers for selling whisky. The defendant's version was that Brothers came to the stable and that he did not know Brothers, but that as soon as he got into the stable he commenced cursing defendant, and struck him a time or two, telling him that he had told on his mother-in-law about selling whisky, and that he had come to town to get him, and intended to do it before he left, and about that time his sister-in-law drove up to the front of the stable, and called him out, and after talking to her a while, he stated to her that he did not intend to leave until he had fixed things so that defendant would not appear against his mother-in-law, whereupon he turned his right side to defendant, put his hand in his right hip pocket, and began to draw out a pistol, whereupon defendant fired the shot that killed him.

The following charges were given for the state: "No threats unaccompanied with acts which threaten the life or limb of the slayer will justify a felonious homicide. In a case of homicide, no mere words used by deceased towards defendant however insulting, will reduce the degree of homicide to less than murder. Malice may be presumed from the use of a deadly weapon."

The other charges given for the state have reference to murder in the first degree.

The following charges were refused to defendant:

"(B) The court charges the jury that under the evidence in this case the defendant had a right to be at the stable, and if you find from the evidence that deceased went to the stable for the purpose of engaging in a difficulty or altercation with the defendant and for the purpose of taking his life or inflicting upon him grievous bodily harm, and if the jury further find from the evidence that at the time defendant shot deceased, the facts and circumstances were such as to produce in the mind of a reasonable man the belief that it was the intention of deceased to engage in a difficulty with defendant, and inflict upon him death or grievous bodily harm, and if defendant fired the shot that killed deceased, under these circumstances and under this belief, you should acquit defendant."

D is similar to B, with the additional hypothesis of threats against defendant, with the communication of these threats to defendant.

"(F) The court charges the jury that defendant had a right to testify as a witness in his own behalf, and if the jury are reasonably satisfied from all the evidence that defendant had good cause to believe that Brothers would carry into execution the threats made against him, and that the facts and circumstances were such as to lead a reasonable man into believing that he would carry into execution these threats, then the jury should acquit on the ground of self-defense."

(H) Similar to D.

(L) Asserts the doctrine of self-defense without hypothesizing duty to retreat.

"(R) If you find from the evidence that defendant was employed at the livery stable when the difficulty occurred, then I charge you that he had a...