Davis v. State

• Decision Date: 30 June 1914
• Docket Number: 605
• Citation: 66 So. 67,188 Ala. 59
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

66 So. 67

188 Ala. 59

DAVIS v. STATE.

No. 605

Supreme Court of Alabama

June 30, 1914

Appeal from Shelby County Court; E.S. Lyman, Judge.

Walter Davis was convicted of murder, and he appeals. Reversed and remanded.

The following charges were refused to defendant:

(2) "If, from the evidence in this case, there is a probability of defendant's innocence, the jury should find him not guilty, even though the jury has no reasonable doubt from the evidence that defendant is guilty."

(3) "If any of the state's witnesses have exhibited prejudice or anger against defendant and satisfied you that they have not testified truly and are not worthy of belief and you think their testimony should be disregarded, you may disregard it altogether."

(4) "If there is a probability of defendant's innocence, you should acquit him."

(6) "If any of the state's witnesses," etc., as in charge 3.

(13) "If you believe from the evidence that deceased and J.W. Howard were acting in concert, and that the killing was the result of a sudden blow inflicted by Howard, which aroused defendant's sudden action, or if they have a reasonable doubt as to whether the killing was the result of passion, suddenly aroused by the blow on defendant by said Howard, if they believe that deceased and Howard were acting in concert, you can't find defendant guilty of murder."

(19) "If defendant, Walter Davis, shot Jim Watters under a bona fide belief that he was in impending danger of life or limb, and that he had, under all the circumstances reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was danger or not."

(27) "The law does not impose, upon a person attacked with murderous intent, the duty to retreat unless the evidence in the case shows the person could have retreated without increasing his peril."

(30) "It is not necessary, under the evidence in this case, that defendant should have actually been in danger of death or great bodily harm at the time he killed Jim Watters or that retreat would have increased his danger, in order for him to have been justified in shooting Jim Watters."

(33) "If the killing was the consequence of passion suddenly aroused by a blow given, they cannot convict defendant of murder."

(36) Same as 30, and adds: "He had a right to act on the appearance of things at the time taken, in the light of all the evidence, and if the circumstances attending the killing are 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 believed such to be the case, then he had a right to shoot Jim Watters 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 believe that defendant acted under such conditions and circumstances above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the state and, if not shown, you should acquit defendant."

(37) Practically the same as 36.

(38) "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 deceased. He had the right to act on the appearance of same at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of deceased in the light of any threats that the evidence proves deceased to have made against him. If the circumstances of the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm" (and concluding as does charge 36).

(A) "The burden is on the state to prove to you, beyond all reasonable doubt, that defendant was at fault in bringing on the difficulty, and that deceased was not at fault in bringing on said difficulty, provided that defendant has reasonably satisfied you from the evidence that deceased was making an effort to get at defendant with a knife, and defendant honestly believed that his life was in danger, and he shot under such belief, and there was no reasonable mode of escape for defendant without increasing his peril."

(E) "This defendant had a right, under the law, to go to the store where the fatal difficulty occurred."

Riddle & Ellis, of Columbiana, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

SAYRE J.

Defendant killed one Watters by shooting him with a pistol, was convicted of murder in the first degree, and sentenced to imprisonment for life.

Defendant admitted the killing, which indeed had been committed in a store at Siluria and had been witnessed by a number of people, and sought to excuse himself on the ground of self-defense.

Defendant was allowed to show that about 30 minutes before the killing, and while he and deceased were waiting to be paid off at the mills in the neighborhood where they worked together, deceased had made an attack upon him and threatened him with a mill hammer. This testimony, going to show the fact and general nature of a previous difficulty, was not objectionable to the state, for one tendency of it was to prove defendant's motive and malice; it may also have served a proper purpose for defendant, if the jury had been in doubt whether to accept his version of the circumstances of the encounter (Beasley v. State, 61 So. 259), but, when defendant sought to go further into proof of the details and merits of the previous occasion, the state's objections were properly sustained, on the grounds of administrative necessity, and because the merits of defendant's plea were not dependent upon the inquiry whether defendant or deceased had been at fault in the previous difficulty (1 Mayf.Dig. §§ 331, 377, et seq.). If the evidence of this previous difficulty may have served any legitimate purpose of defendant in the way of showing that the deceased was the aggressor on the occasion of the fatal encounter, he had the full benefit of all he was entitled to prove in that connection. Watts v. State, 59 So. 270.

Counsel for the defendant, examining defendant as a witness in his own behalf, proposed to have him testify that on setting out from his home to the store, before the killing but after the difficulty at the mill, he had said to his wife that he was going down to the store to settle his account. Defendant cites a line of cases beginning with Pitts v. Burroughs, 6 Ala. 733, and ending with Maddox v. State, 159 Ala. 53, 48 So. 689, to show that there was error in the court's exclusion of this evidence of the witness' previous declaration under the circumstances stated. The rule outlined in these cases is that declarations made by the actor or party concerned, at the time an act is done, and which explain the quo animo and design of the performance, may, whenever the nature of the act is called in question, be given in evidence as part of the res gestae. Another rule of evidence is stated in Williams v. State, 105 Ala. 96, 17 So. 86, in this language:

"Exculpatory declarations of a defendant charged with crime are never admissible in his favor, unless they are within and constitute a part of the res gestae of some situation, condition, or fact which is itself relevant to the issue of guilt vel non." Evidence of defendant's declaration under the circumstances and to the effect stated above was offered on the theory, we suppose, that the fact that defendant went from his home to the store where the killing was done was relevant to the issue of guilt vel non, and that the declaration itself tended to exculpate accused by rebutting the inference of malice or a design to take the life of deceased, formed before the act. If there had been any issue as to whether defendant was at the store and committed the deed charged against him, the fact of his declaration upon setting out that he intended to go to the store would have been an inculpatory admission provable against defendant, as all such admissions are. But defendant did not deny his presence at the store, nor, as we have already stated, did he deny the killing; he claimed only that he acted in self-defense. In this state of the case, so much of the declaration as indicated that he was going to the store was

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