Cheney v. State
| Decision Date | 13 June 1911 |
| Citation | 55 So. 801,172 Ala. 368 |
| Parties | CHENEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; James A. Bilbro, Judge.
Claude Cheney was convicted of murder, and he appeals. Reversed and remanded.
The defendant was indicted for killing Sam Snyder by shooting him with a pistol. It appears from the evidence that Snyder was in appellant's poolroom in Alabama City, and when appellant returned from the council chamber and entered his place of business he fired rapidly three shots. It further appeared that at the time of the shooting the deceased had just caught or picked up a cue ball, and had it in his right hand in a threatening attitude, and a cue stick in his left hand. The evidence further tended to show that a short while before the deceased, with a cue ball in his pocket, had made vile and vigorous threats against the appellant, and that on the afternoon before the shooting that night the deceased had insulted the defendant's wife and given defendant's baby sufficient whisky to get it drunk.
The following charges were refused the defendant: (1) "Gentlemen of the jury, I charge you that an assault with the hand or fist never justifies or excuses a homicide and it is for you to decide whether the facts in this case are within the ordinary reason or not." (4) "In going to his poorlroom the defendant could not be considered as at fault in bringing on the difficulty." (6) "The defendant is entitled, gentlemen of the jury, to any reasonable doubt that you may entertain from the evidence, or any part of it, of his guilt or innocence as charged in the indictment; and I charge you further gentlemen of the jury, that if any member of your family entertain such reasonable doubt of defendant's guilt or innocence, their verdict of conviction would not be true." (7) "I charge you that if, after looking at all the evidence in the case, your minds are left in such a state of 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 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 would entitle the defendant to an acquittal, and you should so find." (9) "The court charges the jury that if they have a reasonable doubt from the evidence that at the time of the fatal difficulty defendant entered his place of business, and deceased, upon seeing him, caught or picked up a cue ball in his hand, so as to impress the mind of defendant, and under all the circumstances was so calculated to impress the mind of a reasonable man, that it was the intention of the deceased to make an assault upon defendant with said ball, then the defendant would have the right to shoot, and the law would hold him harmless, and it would be the duty of the jury to acquit him." (10) "I charge you that if the defendant was free from fault in bringing on the difficulty and believed at the time that he was in danger of an assault of a serious nature being inflicted upon him by the deceased then under the law you have a right to shoot, and the jury should acquit." (12) "It is the law, gentlemen of the jury, that defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by deceased, and, gentlemen, if, on considering the evidence or any part of it, 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." (14) "The conviction of the defendant, gentlemen of the jury, would be wrongful, if from the evidence, or any part of it, the jury, or any member of the panel, have a reasonable doubt of his guilt as charged in the indictment."
There were numerous exceptions to the evidence, but it is not deemed necessary to here set them out.
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Brown v. State, 6 Div. 238
... ... written instructions. Title 7, Sec. 273, Code 1940 ... Charge ... 6 has a tendency to confuse. Freeland v. State, 26 ... Ala.App. 74, 153 So. 294 ... In ... Harris v. State, 96 Ala. 24, 11 So. 255; Chaney ... v. State, 178 Ala. 44, 59 So. 604; and Cheney v ... State, 172 Ala. 368, 55 So. 801, refused charge numbered ... 14 was accepted as applicable to the facts in those cases ... The reasons for its approval therein have no adaptation to ... the evidence in the case at bar. We entertain the view that ... when, as in this case, the question ... ...
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