Brewer v. State

• Decision Date: 08 April 1909
• Citation: 49 So. 336,160 Ala. 66
• Parties: BREWER v. STATE.
• Court: Alabama Supreme Court

49 So. 336

160 Ala. 66

BREWER v. STATE.

Supreme Court of Alabama

April 8, 1909

Appeal from City Court of Talladega; G. K. Miller, Judge.

Charles E. Brewer was convicted of murder, and appeals. Affirmed.

John Randolph Cooper, for appellant.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen and Marion H. Simms, for the State.

MAYFIELD J.

The annals of this court will hardly reveal a more malicious willful, deliberate, and premeditated murder than is here shown by this record. Defendant and deceased were members of the hauling crew of workmen engaged on the construction work of the A., B. & A. Railroad Company. The crew had been to Talladega to do some heavy hauling (of machinery, etc.), and on the 10th day of December, 1907, having finished this hauling, had started back, with empty wagons, to the camp which was some 40 miles west of Talladega. One Eager was foreman of the crew, and deceased was subforeman. Just before leaving Talladega at about 7 o'clock of that morning, some words passed between defendant and deceased--whether jocularly or in earnest does not appear. After going about a half mile from Talladega, deceased got in the wagon with defendant and one Grace, and rode with them about one mile, and then defendant got out and walked some distance. Two mules were tied to this wagon, being thus led, and just as defendant went to get back into the wagon deceased turned one of these mules loose, and ordered defendant to ride it. Defendant declined, saying that he had no saddle or bridle; and deceased said he had to ride it, using an oath. Defendant still declined to ride the mule, and got into the wagon and sat down on the seat between Grace and deceased, and retied the mule to the front end of the wagon. As defendant was doing this, deceased remarked to him: "Brewer, you must be drunk." Defendant replied, "No." Deceased then said, "You must be drinking then"--which defendant denied. Deceased then retorted in a vulgar epithet, to which defendant replied that he thought deceased was drunk. Deceased thereupon caught hold of defendant, shaking and choking him and calling him vile epithets, and threatening to kill him. Deceased and Grace then got out of the wagon, whereupon defendant says deceased remarked to him: "I gave you warning before I left Talladega that the next time I lay eyes on you I will kill." "I then went on to get the gun to defend my life, and, as we met in the road, I asked him to take back what he called me. He just jumped up and started to cut me, and I shot him." This was defendant's story of the case in substance. The whole crew were going along the road together, and at this time were about five or six miles from Talladega, going west. No one saw or heard any of this previous difficulty except Grace, though they were near enough to do so. A showing was introduced as to the evidence of Grace which substantially corresponded with defendant's story. Grace was shown to have left the state, and his residence to be unknown.

There was, however, some evidence tending to show the previous difficulty. It was a statement made by deceased to Eager while defendant was gone after the gun, but no one knew he had gone for a gun. Defendant left the party, and went a mile or two and borrowed a double-barreled shotgun under the pretext that he wanted to shoot some birds, returned to the road along which the crew were traveling, waited till they arrived, stood upon the side of the road on a bank in a pine thicket, and, when deceased drove up in the wagon with two other men, defendant pointed the gun at deceased, threatened him, and said to him: "You called me a son of a bitch, did you?" Deceased then threw up his hand, and said: "Charlie, I didn't mean it." Patterson, who was in the wagon with deceased, hollowed to defendant not to shoot till he could get out of the wagon. Defendant then lowered the gun till Patterson got out of the wagon, when he fired, shooting deceased in the face; the shot taking off a part of his jawbone. When the gun fired, the mules pulling the wagon ran about 50 yards to the next wagon in front; defendant following in hot chase. Deceased had then fallen upon the double-tree of the wagon, with his head down. Defendant walked or ran to within a few feet of deceased as he was lying upon the double-tree, face down, in the act of falling, and shot him through the back. Defendant was so close to deceased when he fired this shot that the whole load, including the wads in the shell, was found in this wound in the back of deceased. Deceased died from this wound within a few minutes. No weapon of any kind was found upon deceased. Defendant made some contradictory statements about his having a knife at the time of the previous difficulty. Defendant does not claim that he saw a knife at the time he shot deceased, but makes some contradictory and unreasonable statements about deceased's putting his hand in his pocket, etc. Defendant then broke his gun, as if to reload it. Eager hollowed to the other men to catch him, but he fled to the woods in a southwesterly direction. He did not return the gun which he borrowed under a false pretense, and was thereafter arrested in Birmingham, where he had purchased a ticket to some point in Georgia, and was in the act of taking the train to that point. He told the sheriff who was bringing him back to Talladega that the deceased choked him and called him a son of a bitch, and that he thought he had a right to kill him. He did not then say anything about a knife.

Many of the questions raised upon this appeal are dependent and founded upon the doctrine of self-defense. It is both unnecessary and impracticable to treat and consider each of the same separately, as we will hereafter show.

No question of law has been oftener or more fully treated by this court than that of the doctrine of self-defense. The law of this state, as to this doctrine, may be said to be well (and we believe, correctly) settled; and we will state only so much of it as is necessary to dispose of the questions material on this appeal.

A defendant in a homicide case cannot set up or plead self-defense if he was the aggressor and provoked or brought on the difficulty which resulted in the homicide, unless he thereafter withdrew and retired from the conflict, or in good faith attempted so to do without increasing his danger, and was thereafter so pursued and pressed by his adversary that the latter in thus renewing the difficulty became the assailant, instead and in place of the defendant who had so retired and withdrawn, and announced, in good faith, by word or deed, his desire for peace, in which latter contingency the defendant's right of self-defense, though once lost, is revived. Parker v. State, 88 Ala. 4, 7, 7 So. 98; Stillwell v. State, 107 Ala. 16, 19 So. 322; Crawford v. State, 112 Ala. 1, 21 So. 214; Bostic v. State, 94 Ala. 45, 10 So. 602; Eiland's Case, 52 Ala. 322. Self-defense, as has been often decided, is based upon the general legal maxim that "no man can take advantage of his own wrong." Like his house or castle, "it is his shelter, but not his sally port." Watkins' Case, 89 Ala. 82, 8 So. 134. A man must retreat rather than take the life of another, unless to retreat would increase his peril, or it reasonably appears that his peril would thereby be increased. The fact that retreat would not place the defendant at a better advantage is not sufficient to excuse retreat. Bell v. State, 115 Ala. 25, 22 So. 526; Carter v. State, 82 Ala. 13, 2 So. 766; 1 Mayfield's Dig. p. 804, which collects the cases. There are some exceptions to this general rule as to retreat from one's castle, but there is nothing to bring this case within any of the exceptions.

The law of homicide in Alabama does not consider the doctrine of retreat as a cowardly doctrine. It provides no balm for wounded pride incident to declining a combat, or to being called a coward. It declares that one man must flee rather than that another should die. Stoball v. State, 116 Ala. 454, 23 So. 162; Springfield v. State, 96 Ala. 81, 11 So. 250, 38 Am. St. Rep. 85; Harrison v. State, 78 Ala. 6. In order to justify self-defense, the accused must be wholly free from fault in provoking the difficulty. Reasonably free is not sufficient. The more recent cases of this court have correctly changed the rule from reasonably free to free. The accused must be mindful of his words and deeds which are likely to produce a deadly combat. If he invites the combat, he must be held to have contributed to the necessity for slaying his adversary, and cannot invoke the doctrine of self% BFdefense. Reese v. State, 135 Ala. 14, 33 So. 672; Crawford's Case, 112 Ala. 1, 21 So. 214; McQueen's Case, 103 Ala. 17, 15 So. 824; 1 Mayfield's Dig. p. 807; 5 Mayfield's Dig. p. 863. If the accused seeks the fatal difficulty, or seeks the deceased for the purpose of provoking an encounter, and then brings it on, or if, having had a previous difficulty, he goes one or two miles and borrows a shotgun, and, returning to the road along which he knows his adversary is coming, waits till his adversary arrives, or advances to meet him, and accosts him (as defendant accosted deceased on this occasion), and, when his adversary replies and starts towards or from him, thereupon shoots and slays him, he is guilty of murder, and cannot set up self-defense.

It here conclusively appears that, after the former difficulty defendant went off, armed himself, laid in wait for or secured the advantage of his adversary with a shotgun ready for execution, accosted his adversary, not in the spirit or language of compromise or peace, and as his adversary (on one theory) tried to apologize and to flee, or (upon defendant's theory) attempted to go towards defendant as...