Collier v. State
| Decision Date | 18 November 1975 |
| Docket Number | 6 Div. 940 |
| Citation | 328 So.2d 626,57 Ala.App. 375 |
| Parties | Larry Glenn COLLIER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
James E. Berry and Hayden R. Battles, Cullman, for appellant.
William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
Appellant-defendant, an indigent at nisi prius and on this appeal, was convicted of first degree murder. The jury fixed punishment at life imprisonment.
The victim of the homicide was Harold Eather Brown, who was the father-in-law of defendant. The homicide was effected by the use of a semi-automatic rifle fired in the living room of deceased at his home in Cullman County.
It is undisputed and the evidence is ample that at the time defendant and his pregnant wife, together with deceased and his wife and children, all occupied the same dwelling house as their home. Each family shared some of the living expenses; all had access to the living room where the homicide occurred.
The evidence indicates that the homicide victim on occasions consumed alcoholic beverages to the extent of becoming inebriated, and when in that condition, was prone to be violent and abusive of his family, including his own wife and defendant.
It further appears that on or near the day of the slaying, defendant had procured possession of the rifle used in the slaying and brought it to their home. He contended that he was going hunting, but there was other evidence to support an inference that he brought it to their home for use on his father-in-law in self-defense.
Omitting reference to much evidence of fussing, threats and abuse emanating from family contacts when defendant was drunk, we now refer to evidence as to what happened at the time of the slaying.
It appears that defendant placed the rifle just inside the living room while some members of the family went outside for one of them to use a rest room. Defendant contends that the father-in-law, Brown, was drunk and lying on a couch when he began his abusive tantrum and started in the direction of the rifle, and kept coming, making threats. Then defendant contends he grabbed the rifle and fired several shots at his father-in-law in self-defense. One or more of the rifle bullets killed him. There was no evidence that defendant was the aggressor or provoked the advance toward the gun and defendant.
Generally, as said in Naugher v. State, 105 Ala. 26, 17 So. 24, there are three elements of self-defense. It must appear, first, that at the time there was a necessity to take life, or that the circumstances were such as to create in the mind of the defendant a reasonable belief that it was necessary in order to save life or to prevent grievous bodily harm; second, that there was no reasonable mode of retreat or escape; and, third, it must not appear that the defendant provoked or was at fault in bringing on the difficulty.
But when it is shown, as here, that there was no duty to retreat for that the homicide occurred in his own home, the element of retreat is eliminated. Usrey v. State, 54 Ala.App. 448, 309 So.2d 485(3) cert. den. Usrey v. State, ex rel. Atty. Gen., 293 Ala. 776, 309 So.2d 489. But the plea of self-defense is not available to defendant if he provokes or was at fault in bringing on the difficulty.
The trial court refused appellant-defendant's written charge, approved in Naugher, supra, which we quote as follows:
'The Court charges you that the law does not require one who is assailed in his own dwelling to retreat from, but the law permits him, and says that it is his right, to stand his ground and kill his assailant if it necessary so to do to save his life, or to protect himself from great bodily harm, provided he was without fault in bringing on the difficulty; and in this case the Court charges the jury that if they believe from the evidence that the deceased so acted as to create in the mind of defendant reasonable belief that he himself or any member of his family was in danger of life or sustaining great bodily harm, at the hands of the deceased, then the defendant, under the law, had a right to shoot deceased and take his life, if such shooting was necessary to protect his own life, or that of any member of his family, from sustaining great bodily harm at the hands of the deceased.'
It is to be noted that the first clause of the charge contains a correct statement of the law as to retreat when the...
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Kent v. State
...person did in self-defense. This right extends not only to the person assailed, but also to any members of his family. Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629 (1975). It has long been the law in Alabama that, if an assault on one's house i......
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Brooks v. State
...or he knows that he can avoid the necessity of using such force with complete safety ... [b]y retreating"); Collier v. State, 57 Ala.App. 375, 377, 328 So.2d 626, 628 (1975), cert. denied, 295 Ala. 397, 328 So.2d 629 (1976) (a necessary element of self-defense is that there be "no reasonabl......
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Crawford v. State
...testimony, as applied to this case, and should have been given . . . ." Smith, 88 Ala. at 77, 78, 7 So. at 53. See also Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629 (1976); McMillon v. State, 37 Ala.App. 690, 74 So.2d 728 (1954); Abercrombie v.......