Bryant v. State
| Decision Date | 24 February 1949 |
| Docket Number | 4 Div. 518. |
| Citation | 39 So.2d 657,252 Ala. 153 |
| Parties | BRYANT v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied April 14, 1949.
Alto V. Lee, III and Huey D. McInish, both of Dothan, for appellant.
A A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty Gen., for the State.
The defendant has appealed from a sentence of life imprisonment after a conviction of murder in the first degree. Few objections and exceptions occurred pending trial and the ones meriting treatment are those argued in brief of counsel, so discussion will be limited to them.
Defendant killed his wife in the dwelling house where they were residing and interposed a plea of self-defense. Error is asserted in the refusal of his special requested charge no. 2: 'The Court charges the jury that under all the evidence in this cause, the defendant was under no duty to retreat at the time of the shooting of the deceased.'
There was evidence tending to show that defendant was himself the assailant and at fault in bringing on the difficulty and the charge was therefore properly refused in pretermitting a consideration of such evidence, having the effect of an affirmative instruction that there was no such proof and thereby tending to mislead the jury.
A proper statement of the pertinent doctrine is that a person is not obligated to retreat where, being without fault in bringing on the difficulty, he is assaulted while in his dwelling house, office, or place of business, or within the curtilage thereof, and it is immaterial whether the assailant is an intruder or another lawful occupant of the premises but a defendant not so circumstanced is without the benefit of the doctrine. Maxwell v. State, 129 Ala. 48, 57 29 So. 981; Medlock v. State, 114 Ala. 6, 22 So. 112; Andrews v. State, 159 Ala. 14, 29, 48 So. 858; Baugh v. State, 215 Ala. 619, 112 So. 157; Wood v. State, 17 Ala.App. 654(7), 88 So. 28; Sandford v. State, 2 Ala.App. 81, 57 So. 134(9); Hicks v. State, 21 Ala.App. 335(5), 108 So. 612, certiorari denied, 214 Ala. 675, 108 So. 614; 40 C.J.S., Homicide, § 130c, page 1015.
The defense proved that several months prior to the fatal difficulty the deceased assaulted the defendant with an ice pick and threatened to kill him. In eliciting this proof the defendant was refused permission to introduce the alleged ice pick in evidence. In this ruling there was no error. While the defendant could introduce evidence of such prior difficulty and, to illustrate its general nature and gravity could show that a weapon was used by the deceased and that threats accompanied the attack, he may not go into the details or the merits of the prior altercation. Watts v. State, 177 Ala. 24, 30, 59 So. 270; Buffalow v. State, 219 Ala. 407(1), 122 So. 633; Bowen v. State, 217 Ala. 574, 578, 117 So. 204; Thornton v....
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...§ 505(b)(2)(ii) (A) (Purdon 1973) discussed in Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90, 92-95 (1977). See also Bryant v. State, 252 Ala. 153, 39 So.2d 657 (1949); Hutcherson v. State, 170 Ala. 29, 54 So. (1910); State v. Phillips, 8 W.W.Harr. 24, 38 Del. 24, 187 A. 721 (Del.Ct. Oye......
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