Cox v. State

• Court: Alabama Court of Appeals
• Citation: 96 So. 83,19 Ala.App. 205
• Docket Number: 4 Div. 859.
• Parties: COX v. STATE.
• Decision Date: 17 April 1923

96 So. 83

19 Ala.App. 205

COX
v.
STATE.

4 Div. 859.

Court of Appeals of Alabama

April 17, 1923

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Wyatt Cox was convicted of murder in the second degree, and he appeals. Reversed and remanded. [96 So. 84]

[19 Ala.App. 207] The following charges were requested by the defendant and refused by the court:

"1 I charge you that, if you believe from the evidence that the defendant was free from fault in bringing on the difficulty, and further believe from the evidence that deceased was, at the time he was struck, making a felonious assault upon the defendant, that in that event the defendant would be under no obligation to retreat. But he may, if necessary, stand his ground and kill his adversary

"2. I charge you that, if you believe from the evidence that the defendant was free from fault in bringing on the difficulty, and your further believe from the evidence that deceased at the time he was struck was making an attack upon the defendant with a deadly weapon, that the defendant would be under no obligation to retreat. But he may, if necessary, stand his ground and kill his adversary.

"3. I charge you that, if you believe the evidence, you cannot convict the defendant of murder in the first degree.

"B-2. I charge you that, if you believe from the evidence the defendant was free from fault in bringing on the difficulty, and that he returned to the house without purpose to renew it, and you further believe from the evidence that the deceased attacked the defendant with a deadly weapon, the defendant was under no obligation to retreat; but he may, if necessary, stand his ground and kill his adversary.

"C-3. I charge you that, if you believe from the evidence that the defendant was free from fault in bringing on the difficulty, and that he returned to the house for the purpose of obtaining his hat and his children, and without any purpose or intent to renew the difficulty, [96 So. 85] and you further believe from the evidence that deceased attacked him with a deadly weapon, the defendant was under no obligation to retreat, but was justified, if necessary, to stand his ground and kill his adversary.

"4. I charge you that, if you believe the evidence, you cannot convict the defendant of murder in the second degree.

"5. I charge you that, if you, believe the evidence, you cannot convict the defendant of either murder in the first degree or murder in the second degree.

"1-B. The court charges the jury that it is not necessary under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he killed Lay, or that retreat would have really increased his peril, in order for him to be justified in striking Lay. He had the right to act on the appearances of things at the time, taken in the light of all evidence, and he had the right to interpret the conduct of Lay in the light of any threat that the evidence proves Lay to have made against the defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believes such to be the case, then he had the right to strike Lay in his own defense, although as a matter of fact he was not in actual danger, and retreat would not have endangered his personal safety; and, if the jury believes that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and, if not shown, the jury should acquit the defendant.

"I. I charge you that, if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt and the jury should acquit.

"J. I charge you that if, after looking at all the evidence in the case, your minds are left in such 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 defendant from great bodily harm or death, or that he struck before such impending necessity arose, then this is such doubt as would entitle the defendant to an acquittal and you should so find.

"D-4. I charge you that the burden is upon the state to convince you of the truth of every material allegation of the indictment, and, if the state has failed to do this, you should acquit the defendant."

E. C. Boswell, of Geneva, for appellant.

[19 Ala.App. 208] Harwell G. Davis, Atty. Gen., for the State.

FOSTER, J.

Defendant, appellant, was convicted of murder in the second degree. The evidence of the prosecution tended to show that the defendant and deceased, Erastus Lay, had a fight in the home of deceased a short time prior to the killing; that after this difficulty defendant left the house, went into the yard, picked up a small axe, returned to the house, renewed the...