Brown v. State, 6 Div. 238

• Decision Date: 18 June 1946
• Docket Number: 6 Div. 238
• Citation: 33 Ala.App. 97,31 So.2d 670
• Parties: BROWN v. STATE.
• Court: Alabama Court of Appeals

31 So.2d 670

33 Ala.App. 97

BROWN v. STATE.

6 Div. 238

Alabama Court of Appeals

June 18, 1946

Rehearing Denied Aug. 1, 1946.

Reversed after Remandment March 25, 1947.

Rehearing Denied April 15, 1947.

George Rogers, Roderick Beddow and G. Ernest Jones, all of Birmingham, for appellant.

Wm. N. McQueen, Atty. Gen., and Jas. T. Hardin and Bernard F. Sykes, Asst. Attys. Gen., for the State.

The following charges were refused to the defendant:

'3. The court charges the jury that the legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence, to the benefit of which the accused is entitled; and, as a matter of evidence, it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt.'

'5. The court charges the jury that the burden is upon the state and it is the duty of the state to show, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and, unless the state has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.'

'6. The court charges the jury that the burden is on the state to convince you of defendant's guilt to the exclusion of every reasonable doubt, and by evidence that overcomes the presumption of fact, that the law surrounds the defendant with, that he is innocent of crime.'

'10. The court charges the jury that the bare fear of the commission of the offense, to prevent which the defendant used a deadly weapon, is not sufficient to justify it; but the circumstances must be sufficient to excite the fear of a reasonable man, and the attacking party must have acted under the influence of such fear alone. It is not necessary, however, to justify the use of a deadly weapon, that the danger be actual. It is enough that it be apparent danger; such an appearance as will induce a reasonable person in defendant's position to believe that he was in immediate danger of great bodily harm. Upon such appearances the party may act with safety; nor will he be held accountable, though it would afterwards appear that the indication upon which he acted was wholly fallacious, and that he was in no actual peril. The rule in such a case is this: what would a reasonable person, a person of ordinary caution, judgment, and observation, in the position of the defendant, seeing what he saw and knowing what he knew, honestly believe from the situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril, and in acting upon such appearance.'

'11. The court charges the jury that if defendant shot deceased under a bona fide belief that he was in impending danger of limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.'

'14. The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find.'

'15. The court charges the jury that if defendant was free from fault in bringing on the difficulty, he was under no obligation to retreat, unless you believe he would have retreated without increasing his danger, or with reasonable safety.'

'16. The court charges the jury that it is the law that defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by the deceased, and if, on considering the evidence or any part of it, when considered with the whole evidence, you have a reasonable doubt as to whether defendant was justified in taking the life of deceased in defending himself from such assault, it will become your duty to acquit him.'

'17. The court charges the jury that proof of good character, if proved to your reasonable satisfaction, may be sufficient to authorize you to acquit defendant, when taken in connection with all the other testimony.'

'20. The court charges the jury that in all criminal cases under the law of our land every man on trial has the right to offer his standing in the community before the jury, not for the purpose of disproving that he did not to a thing or that he did do a thing, but if he can show a good reputation it is for the jury to look at that reputation in connection with all of the evidence to say whether or not a man of such standing would have done the thing he is charged with having done; and, if after considering all the testimony, the jury is of the opinion or have a reasonable doubt as to whether a man would do what he is charged with having done, bearing that good reputation, if the jury believe that has been established, then that may be sufficient to generate a reasonable doubt; but you do not acquit by reason of the good reputation that a man established, but by reason of the reasonable doubt engendered by having established a good reputation.'

'26. I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt this is sufficient to raise a reasonable doubt, and the jury should acquit him.'

'A6. The court charges the jury if, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental disease, and that by reason of the duress of such mental disease he had so far lost the power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental disease in the relation of cause and effect as to have been the product of it solely, the jury should acquit the defendant.'

'A14. The court charges the jury that if they are reasonably satisfied from the evidence in this case that at the time the defendant fired the fatal shot he was in imminent danger of losing his life or suffering grievous bodily harm at the hands of the deceased, or reasonably appeared to be in such danger and honestly fired the

fatal shot under such belief, then your verdict should be for the defendant, unless you are satisfied beyond all reasonable doubt from the evidence in this case that the defendant entered the fight willingly, or was at fault in bringing on or encouraging the difficulty; and I charge you as a matter of law that, if you are reasonably satisfied from the evidence that he was in danger as I have just defined, or reasonably appeared to be in such danger, then to fire the fatal shot in honest belief of such danger, with an intent and fixed purpose to kill, would not constitute entering the fight willingly, so as to cut off his right of self-defense, as I have defined the ingredients of self-defense to you; and I further charge you that if what he said or did at the time prior to the fatal shooting was not wrongfully said or done, with a view of bringing on the difficulty or encouraging the difficulty, and, further, if said words, conduct, or deeds of whatever kind did not in fact bring on the difficulty, then such acts and confuct would not be such as to render him at fault in bringing on or encouraging the difficulty, in such manner as to cut off his right of self-defense, as I have defined the same to you.'

'A15. The court charges the jury that it is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life, but, if the jury are satisfied, from all the evidence in the case, that the circumstances attending the firing of the fatal shot were such as to impress Neal Brown, the defendant, with a reasonable belief that at the time of firing the shot it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty.'

'A16. The court charges the jury that if they find from the evidence that the deceased, at the time the shot was fired, was making an assault on the defendant, and that the defendant in resisting said assault, used force not greatly disproportionate to the character of the assault, and death resulted, this would be self-defense, and the jury should acquit him.'

CARR Judge.

Appellant was tried in the court below on an indictment charging murder in the first degree. Upon his conviction for murder in the second degree his punishment was fixed at imprisonment in the State penitentiary for a term of twenty years.

A special plea of insanity gave leave for a wide latitude in the introduction of evidence.

In our view of the disposition of this appeal it appears that no good purpose can be gained by a full, detailed recitation of the tendencies of the evidence. Suffice it to say here that a jury question was posed by the evidence in the determination of the defendant's guilt under both the plea of not guilty and not guilty by reason of insanity.

Objections that increased to a great number were interposed by appellant's counsel during the cross examination of the accused and the witnesses introduced in his behalf. We have given careful study to these matters, and we are impressed that in no instance did the court violate the permissive...