Brinkley v. State

• Decision Date: 29 May 1890
• Citation: 89 Ala. 34,8 So. 22
• Parties: BRINKLEY v. STATE.
• Court: Alabama Supreme Court

8 So. 22

89 Ala. 34

BRINKLEY v. STATE.

Supreme Court of Alabama

May 29, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Defendant was indicted for the murder of Jerry Butler, was convicted of murder in the second degree, and sentenced to the penitentiary for a term of 20 years. The homicide occurred at the defendant's own house during a dance and party which, by his own permission, was there given by Tom Belser. The deceased indulged in a dance, which he called the "shake back," and which, as described by some of the witnesses, was very indecent; and, some of the persons present objecting to it, he declared with an oath his right to dance as he pleased. The defendant, then coming in the room, told him that he must not curse and swear in the house and must behave himself, and ordered him to leave; and during the altercation which at once ensued between them the defendant drew his pistol, and fired the fatal shot. The court charged the jury, among other things, (1) "that if the defendant could have avoided the difficulty without danger to himself, he should have done so;" and (2) "that, if the defendant provoked or brought on the difficulty, he cannot be guilty of less than manslaughter in this case."

Watts & Son, for appellant.

W. L. Martin, Atty. Gen., for appellee.

SOMERVILLE J.

The killing of the deceased in the present case occurred in the house of the defendant, being perpetrated by shooting with a pistol. The evidence tended to show that the deceased had been guilty of profanity and indecent behavior, and was for this reason ordered by the defendant to leave the premises whereupon an altercation ensued between the parties, which resulted in the killing. The court, among other things, charged the jury that "it was the duty of the defendant to avoid the killing if he could have done so without danger to himself." This charge was, in our opinion, erroneous, in ignoring both of the above-stated phases of the evidence. The defendant could probably have avoided the necessity of the killing by retreating from combat, and taking refuge in some place of safety. So he might have accomplished the same end by abstaining from administering any rebuke to the deceased for his alleged indecent conduct. Each of these courses might possibly have been resorted to without the least danger. Yet, as the defendant was in his own house and domicile, he was under no obligation to retreat. ...