Cain v. State

• Decision Date: 13 November 1917
• Docket Number: 8 Div. 543
• Citation: 16 Ala.App. 303,77 So. 453
• Parties: CAIN v. STATE.
• Court: Alabama Court of Appeals

77 So. 453

16 Ala.App. 303

CAIN v. STATE.

8 Div. 543

Court of Appeals of Alabama

November 13, 1917

Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.

Will Cain was convicted of murder, and appeals. Reversed and remanded.

The facts concerning the venire sufficiently appear. The following charges were refused to defendant:

(29) Before you can render a verdict in this case against defendant, you must be reasonably satisfied from the evidence that defendant used unnecessary force in repelling the assault or seeming assault upon his sister Lillie Cain unless from the evidence you are reasonably satisfied that Lillie Cain provoked or brought on the difficulty between defendant and Lucy Garrett, or was not free from fault in provoking, or bringing on the difficulty, or that there was a reasonable mode of retreat to said Lillie Cain, from which she could have escaped without increasing her danger, and you are reasonably satisfied that the situation of Lillie Cain was not such at the time he cut or stabbed Lucy Garrett to impress upon the mind of a reasonable man that Lillie Cain was in danger of suffering grievous bodily harm or death at the hands of Lucy Garrett, and defendant did not honestly entertain such belief as to the situation of his sister Lillie Cain.

(35) Before you can render a verdict against defendant in this case, you must be reasonably from the evidence that Lillie Cain provoked or brought on the difficulty, or at least that she was not free from fault in provoking or bringing on the difficulty between her and Lucy Garrett, and that she was not in such real or apparent present, impending danger of death or grievous bodily harm that a reasonable person would not have honestly entertained a reasonable belief that she was in such real or apparent peril, and that there was a convenient or reasonable mode of escape for her from such present, impending peril whether the same was real or only apparent, without increasing such real or apparent peril, or you must be reasonably satisfied from all of the evidence that defendant himself provoked or brought on the difficulty between his sister and Lucy Garrett, or that defendant could have relieved his sister from her apparent or real peril by resort to some other means less harmful than stabbing or cutting Lucy Garrett.

(30) If you are reasonably satisfied from the evidence in this case that Lillie Cain was free from fault in provoking any difficulty between herself and Lucy Garrett, and if you are further satisfied reasonably from the evidence that Lillie Cain was in either apparent or real imminent danger of grievous bodily harm or death at the hands of Lucy Garrett and you are further reasonably satisfied from the evidence that Lillie Cain had no reasonable mode of escape without increasing her real or apparent danger, then her brother, the defendant, had the right to cut or stab Lucy Garrett, and your verdict should be for defendant, unless you are further reasonably satisfied from the evidence that Will Cain could have avoided the peril, whether apparent or real, by resort to some measure less dangerous than cutting or stabbing Lucy Garrett, and unless you are reasonably satisfied from the evidence in the case that the apparent or real danger of Lillie Cain was not such as to reasonably impress upon the mind of a reasonable person that such danger was real or apparent, and Will Cain did not honestly entertain such belief.

(31) If Lillie Cain was free from all fault in bringing on the difficulty between her and Lucy Garrett, then she was under no duty to retreat unless you believe she could have retreated without increasing her danger, or with reasonable safety, and I further charge you that it is immaterial whether that danger was real or not, and Lillie Cain would be under no duty to retreat if she was free from fault in bringing on such difficulty.

(32) If Lillie Cain was free from fault in provoking or bringing on the difficulty between her and Lucy Garrett, and if there was a present, impending peril to her life or danger of great bodily harm to her, either real or apparent, as to create a bona fide belief of an existing necessity, and there was no convenient and reasonable mode of escape by retreat or declining the combat with safety, then defendant would have the right, and it was his duty, under the law, to cut or stab in defense of his sister Lillie Cain, to prevent the commission of a felony upon her, unless you are reasonably satisfied from the evidence in this case that defendant, Will Cain, provoked the difficulty, or could have saved his sister from such real or apparent danger by resort to measures less harsh.

(33) If defendant cut or stabbed under a bona fide belief that his sister's life was in danger, or that she was in danger of grievous bodily harm, and defendant had, under all the circumstances, reasonable cause to believe that his sister was in imminent danger of death or grievous bodily harm at the moment he cut or stabbed, then it would be immaterial whether such danger was real or not.

(34) If Lillie Cain was free from fault in bringing on the difficulty between her and Lucy Garrett, then she was under no duty to retreat unless you believe she could have retreated without increasing her danger, or with reasonable safety.

(36) If you are reasonably satisfied from all the evidence in this case that neither defendant nor his sister Lillie Cain did anything to provoke or bring on the difficulty between Lillie Cain and Lucy Garrett, and if you are also reasonably satisfied from a consideration of all the evidence in the case that at the time defendant cut or stabbed Lucy Garrett there was present, impending peril to the life of Lillie Cain, or said Lillie Cain was in danger

of grievous bodily harm at the hands of Lucy Garrett, and if you are also reasonably satisfied that there was no mode of escape open to Lillie Cain without increasing her danger, and also that there was no reasonable mode by which defendant could have prevented such present, impending peril to his said sister, it is immaterial whether the danger was real or only so apparent as to create a bona fide belief in the mind of defendant of an existing necessity, except by stabbing or cutting Lucy Garrett, then your verdict should be for defendant.

Charges 37, 39, and 43 were but variations of charges 33 and 36.

(38) A brother will not be held responsible either civilly or criminally, if he acts in defense of his sister, if that sister is in a position of danger, either apparent or real.

(40) You must find defendant not guilty unless the evidence is such as to exclude to a marked certainty every supposition but that of his guilt.

(41) A reasonable doubt is such a doubt as leaves your mind in view of all the evidence in a state of reasonable uncertainty as to the guilt of defendant.

(42) If you believe from the evidence in this case that there is one single fact proven to your satisfaction which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt and authorize an acquittal.

(6) The jury must have not only justifying reasons for a conclusion of guilt, not only must they be able to say upon reason that Will Cain is guilty, but this conclusion must press upon the minds of the jury with such convincing clearness and force that they are unable to find in the whole evidence any substantial ruling for a contrary conclusion.

(8) If, upon consideration of all the evidence. you have a reasonable doubt of Will Cain's guilt, arising out of any part of the testimony, you must find him not guilty.

(28) The fact that the grand jury of this county indicted Will Cain for the unlawful killing of Lucy Garrett, with malice aforethought, cannot be considered by you as tending to show either his guilt or innocence of the offense charged.

(44) If you believe Lillie Cain was free from fault in provoking the difficulty between herself and Lucy Garrett and that she had no reasonable mode of escape without increasing her real or apparent danger, and that Lillie Cain was acting in self-defense, then you must find defendant not guilty.

The following charge was given for the state:

(1) If you are satisfied from the evidence beyond a reasonable doubt that Will Cain is guilty, it is your duty to convict him, although you believe it is possible that he is not guilty.

W.R Walker, of Athens, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

PER CURIAM.

The statute provides:

"Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant and must cause a list of the names of all the jurors summoned for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried." Acts Sp.Sess.1909, p. 319, § 32.

This statute manifestly gives to one about to enter upon a trial for his life the right to have the court make an...