Cauley v. State

• Decision Date: 20 April 1948
• Docket Number: 4 Div. 48.
• Citation: 33 Ala.App. 557,36 So.2d 347
• Parties: CAULEY v. STATE.
• Court: Alabama Court of Appeals

36 So.2d 347

33 Ala.App. 557

CAULEY v. STATE.

4 Div. 48.

Alabama Court of Appeals

April 20, 1948

Rehearing Denied May 11, 1948. [Copyrighted Material Omitted]

E O. Baldwin and Jas. M. Prestwood, both of Andalusia, for appellant.

A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

2. The Court charges the jury that if from a consideration of all the evidence there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and you cannot convict him.

3. The Court charges the jury that if the defendant, being himself without fault, reasonably apprehended death or great bodily harm to himself unless he killed the deceased, the killing was justifiable and you should acquit the defendant.

5. The Court charges the jury that a man may repel force by force in the defense of his place of business against one who manifestly intends or endeavors, by violence to commit a known felony, and in such cases, he is not obliged to retreat but may pursue his adversary until he finds himself out of danger, and if, in the conflict between them, he happened to kill, such killing is justifiable.

7. The Court charges the jury that if the defendant was in his own place of business and was there assailed by the deceased, under such circumstances as to reasonably impress him with the belief that the deceased intended to inflict on him great bodily harm, and that there was imminent

danger that such injury would be inflicted upon him, then the defendant had the right to repel such assault by shooting the deceased, and he must be acquitted, providing he did nothing to provoke the assault.

9. The Court charges the jury that if the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb, then the killing would not be wrongful, and it would be the duty of the jury to acquit him, unless the jury further believed from the evidence that the defendant was at fault in bringing on the difficulty.

10. 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 shooting were such as to impress the defendant with a reasonable belief that at the time of the shooting it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless the jury further believe that the defendant was at fault in bringing on the difficulty.

12. The Court charges the jury that the law regards with great jealousy and vigilance the peace and security of a man's place of business. A trespass upon property is the same as a trespass upon a person.

13. The Court charges the jury that the deceased was a trespasser at the time of the fatal shooting and the defendant had a right to use such force as was necessary to put the deceased off his premises.

14. The Court charges the jury that the defendant, under the law, had the right, in defense of the peace and security of his place of business and of himself, and for the purpose of prevention and defense to employ the necessary force to accomplish said purpose even to the taking of the life of the aggressor.

18. The Court charges the jury that a person is justified in taking life in defense of his place of business where it is actually or apparently necessary to do so in order to repel another person who attempts to enter in a forceable or violent manner for the apparent purpose of committing a felony therein, upon the person or inflicting great bodily harm or of assault or of offering personal violence to a person lawfully engaged.

19. The Court charges that the defendant, from the evidence in this case, did not provoke the difficulty.

20. The Court charges the jury that if you believe from all the evidence in this case that the defendant is not guilty of murder in either degree nor manslaughter in the first degree, then it be your duty to consider the evidence as to manslaughter in the second degree.

CARR Judge.

The defendant in the court below was indicted for murder in the first degree and convicted of murder in the second degree. Admittedly he shot Milford Gautney once with a sixteen gauge shotgun.

The prime factual issues center around the doctrine of self defense, which the appellant claimed.

The shooting occurred inside a roadhouse, Pineview. The accused was a joint operator of the place. His connection with the enterprise was such that he was relieved from the duty to retreat in respect to one of the elements of self defense. The deceased was a customer or visitor. At least, he came there before noon and remained until about midnight of the same day, at which latter time he was killed.

It may be said with confidence and accuracy that excessive consumption of intoxicating liquors played a very important part in the ultimate outcome of the visit. In this regard, it appears that the deceased was the most culpable of any of the group.

We will not attempt to set out the detailed tendencies of the evidence. In our effort to illustrate our conclusions on points for review, we will make reference to segments of the disclosed facts.

The trial below began fourteen days after the commission of the offense. A continuance was requested by the defendant on the ground that sufficient time had not been allowed to prepare for trial. This addressed itself to the enlightened discretion of the presiding judge. A fair and just trial depended in the main upon a full disclosure of what occurred during the time the appellant and the deceased were together at the roadhouse on the afternoon and night in question. All witnesses to these facts were available and testified in the cause. We do not conclude that the judge abused his discretion in denying the continuance. Morris v. State, 193 Ala. 1, 68 So. 1003; Adams v. State, Ala.App., 31 So.2d 99; Avery v. State, 237 Ala. 616, 188 So. 391.

The funeral director or mortician testified that he had been in the business continuously for over twenty-five years and had handled many dead bodies where death was caused by gunshot wounds. He also gave a detailed description of the nature and character of the infliction on the body of the deceased, and stated as his opinion that death was caused therefrom. The appellant's objections cannot avail here. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Thomas v. State, 249 Ala. 358, 31 So.2d 71.

In any event the cause of death did not become a disputed factual issue. The gun load--from close range--entered the left side of the deceased's breast, and after going just outside the building he died forthwith.

The State, over the objections of appellant, introduced photographs of parts of the inside of the roadhouse and some of the outside. These were taken soon after the killing and without any dispute in the evidence depicted the scenes substantially as they were at the time of the main event. The authorities approve the introduction of exhibits of this kind. Pilley v. State, 247 Ala. 523, 25 So.2d 57; Blue v. State, 246 Ala. 73, 19 So.2d 11.

The objection to the introduction of the photographs only takes the position that because the view of the entire inside of the building is not seen the picture should not be allowed in evidence. We fail to grasp the importance and significance of this insistence. They show that portion which in any manner related to the material facts of the case.

What we have said applies with equal force to the introduction of a sketch or map of the locale.

It is not a conclusion of a witness to answer whether or not two persons appeared to be friendly. Pollard v. Rogers, 234 Ala. 92, 173 So. 881.

On cross examination of the accused the record discloses:

'Q. Who's shot gun is that? A. Grover Harrelson's.

'Q. Isn't that your shot gun? A. No, sir.

'Q. That isn't the shot gun that was down at Skyline Cafe at Opp that belonged to you? A. No, sir.

'Q. And that is not the same gun you used down there, is it?'

Objections were interposed to the last question and appellant moved for a mistrial. The court sustained the objection and very emphatically instructed the jury that it should not in any manner be concerned with the use of the gun elsewhere. The motion for a mistrial was denied.

It is not entirely clear to us just what the solicitor was inquiring about. It could be taken that the question referred to a gun that was kept in the cafe at Opp for the general use of the appellant. It does not necessarily imply that the defendant had shot some person at a prior time. A feeling of safety and security is afforded when we know that guns are used on occasions other than for the purpose of shooting people.

Be this as it may, it is our view that we should not charge error for the action of the court in the matter.

After the appellant had testified in his own behalf, the State introduced a number of witnesses, each of whom stated that the general character of the accused was bad. The solicitor made known to the court that this line of testimony was presented solely for the purpose of affecting the credibility of the defendant as a witness in the cause. The trial judge so instructed the jury and allowed the proof over appellant's objection.

In brief of counsel the position is urged that this inquiry should have been confined to a time prior to the commission of the offense. This ground was not stated in any of the objections. In fact, no grounds at all appear. McCray v Sharpe, 188 Ala. 375, 66...