Collier v. State

• Citation: 49 Ala.App. 685,275 So.2d 364
• Decision Date: 27 March 1973
• Docket Number: 8 Div. 275
• Parties: Alene COLLIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 364

275 So.2d 364

49 Ala.App. 685

Alene COLLIER v. STATE.

8 Div. 275.

Court of Criminal Appeals of Alabama.

March 27, 1973.

Sherman B. Powell, Sr., Decatur, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

GOODWYN, Circuit Judge.

The appellant, Alene Collier, prosecutes this appeal from a judgment of the Circuit Court of Morgan County, Alabama, adjudging her guilty of manslaughter in the first degree and sentencing her to imprisonment in the penitentiary for a term of one year and one day. This judgment and sentence were in accord with the jury verdict rendered after trial upon her plea of not guilty to an indictment charging murder in the second degree of 'Leon Mitchell by shooting him with a rifle.'

The evidence for the State was to the effect that Mitchell came to the Collier home on the night in question in an intoxicated condition and threatened the defendant with a knife. He chased her from the house on three separate occasions that night. The second time she left the house she picked up a .22 caliber rifle near the front door and laid it underneath the house. Under returning to the east room of the house, she noticed that Mitchell had cut the straps from one of her purses which was lying on a table. She questioned him about this, whereupon he cursed her and threatened to kill her. She left the house for the third time, and upon procuring the rifle from underneath the house, she walked to the rear of the house at the outside window of the east room and fired one shot through the window at Mitchell, who was standing in the room facing the table on which the mutilated purse was lying. The bullet struck him underneath the left armpit in the center of his body, causing death.

Blood and a knife were found on a half-bed in this room by investigating officers; together with a small protrusion or hole in the screen of the window, the edges of which hole pointed inward. No rifle slug was found in the room nor was any spent cartridge found inside or outside the house.

Evidence on behalf of the defendant was to the effect that Mitchell was the father of the defendant's two small children, but she and Mitchell had never been married to one another in a civil ceremony. Mitchell had cut her with his knife on two or three occasions prior to the night of the shooting. He had never helped to support the two minor children and he would stay at the Collier home on occasions when he was drunk. The defendant lived in the home of her mother.

The defendant testified in her own behalf that she saw Mitchell coming to the home of her mother on the night in question and that he held an open knife in his hand. He informed her that he had lost $30.00 gambling and would kill her if she did not give him some money. She borrowed $5.00 which she gave to him and informed him that she could get no more. Mitchell then ran her from the house, cutting at her with the knife. She remained in the yard while he told her that if she came back into the house he would kill her. When she thought it safe to do so, she reentered the house; but he again chased her out. When Mitchell started beating on her child, she again entered the house and saw him chase her mother from the house with the knife. When he chased the Defendant from the house again she got a bullet for the rifle out of the chiffarobe drawer, and then went across the street to the home of her grandfather and obtained the rifle, which she placed underneath the Collier home. She went into the house again and asked Mitchell why had he cut her purses. He still held the knife in his hand and he cursed and threatened her again. She left the house, obtained the rifle from where she had laid it underneath the house and went to the outside of a window of the house. Mitchell was standing in the house at this time. They conversed through the window with one another and his exact words were, 'If you come in the house, I'll kill you.' As he said this he shook the open knife at her. While standing outside the house she then jerked up the rifle and fired at him through the window. The glass was missing from the two bottom panes of the window but it was covered by a wire screen. After the shot was fired Mitchell said, 'You got me now.' He closed the knife and sat on the bed.

At first she did not know whether he was shot or was playing. After waiting a few minutes she went into the room where he lay and saw the blood on his shirt. She bathed his face and head with a wet towel and accompanied him in the ambulance to the hospital. He never spoke again, but only made grunting noises.

The elements of self-defense, justifying the accused in taking the life of his assailant are; (1) that the Defendant must be free from fault in bringing on the difficulty; (2) there must be a present impending peril to life, or danger of great bodily harm, either real or so apparent as to impress on the mind of a reasonable person a reasonable belief of an existing necessity to take life; (3) there must be no reasonable made of escape from the threatened injury without increasing the danger. Rice v. State, 20 Ala.App. 102, 101 So. 82. But a person is under no duty to retreat from his own dwelling or the curtilage thereof. Madry v. State, 201 Ala. 512, 78 So. 866; Walker v. State, 205 Ala. 197, 87 So. 833.

It is also the law that the right of an accused to defend another person as coextensive with the right of the other person to defend himself, and the accused who defends another is upon no higher plane than the one defended. Cain v. State, 17 Ala.App. 530, 86 So. 166. In other words, the one invoking self-defense in protection of a third person is placed in the shoes of such third person. Griffin v. State, 229 Ala. 482, 158 So. 316.

Whether the killing of another was justified as an act of self-defense is a question for the jury. Turner v. State, 160 Ala. 40, 49 So. 828; and this is true even though the defendant's testimony as to how the difficulty occurred is uncontradicted. Olive v. State, 8 Ala.App. 178, 63 So. 36.

A defendant relying on self-defense is not under a burden of proving such issue to the reasonable satisfaction of the jury; but only of offering such evidence as will, when considered with the entire evidence in the case, generate in the jury's mind a reasonable doubt of his guilt. Ex parte Williams, 213 Ala. 121, 104 So. 282; Hubbert v. State, 32 Ala.App. 477, 27 So.2d 228. If the defendant shows a present impending peril to life or of grievous bodily harm, real or apparent, without a reasonable mode of escape or that he was excused from retreating; the burden is then on the State to show that the defendant was at fault in bringing on the difficulty. Roberson v. State, 183 Ala. 43, 62 So. 837; Lakey v. State, 20 Ala.App. 78, 101 So. 537; Cert. Den., Ex parte Lakey, 211 Ala. 615, 101 So. 541.

The trial judge clearly set forth the applicable rules of law as to self-defense in his oral charge to the jury; and this...