Davis v. State

• Decision Date: 18 March 1926
• Docket Number: 8 Div. 843
• Citation: 214 Ala. 273,107 So. 737
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

107 So. 737

214 Ala. 273

DAVIS v. STATE.

8 Div. 843

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

A.L Davis, alias Shorty, alias Alva Davis, was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Mere words or gestures however offensive or insulting, will not reduce homicide from murder to manlaughter.

These requested charges were refused to defendant:

"(10) I charge you, gentlemen of the jury, that it is not necessary that the defendant should have been actually in danger of death or great bodily harm at the time he shot Howell in order for him to be justified in shooting Howell. He had the right to act on the appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of Howell in the light of any threat that the evidence proved Howell to have made against the defendant. If the circumstances attending the shooting were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had the right to shoot Howell in his own defense, although as a matter of fact he was not in actual danger, and, if the jury believed that the defendant acted under such conditions and circumstances as set out above, 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."

"(14) Unless each and every member of the jury are satisfied beyond a reasonable doubt, from all the evidence that the act of the defendant in killing Howell was malicious, and was also deliberate and premeditated, then you cannot find the defendant guilty of either murder in the first degree or murder in the second degree."

"(23) I charge you, gentlemen of the jury, that the law does not presume malice from the use of a deadly weapon, and whether or not in this case malice may be presumed from the use of a deadly weapon is a question for you to determine from all the evidence.

"(24) While malice may be presumed from the use of a deadly weapon, yet this presumption may be rebutted by the fact proving the killing." "(27) It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life, but, if the jury are satisfied, from all the evidence in the case, that the circumstances attending the fatal shooting were such as to impress the defendant Davis with a reasonable belief that at the time of the shooting it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty."

"(29) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence that the deceased cursed, insulted, and abused the defendant by the use of vile language, and the application of vile epithets to him, which insults and abuses were being administered by the deceased to the defendant at the time of the shooting, and if such insults and abuses and epithets were of such character as would so enrage a reasonably prudent man under like circumstances, and to destroy and dethrone his power of reason, and if such insults and abuses did in fact destroy and dethrone the power of reason of the defendant, so that the defendant did not know or realize what he was doing at the time he fired the shots, then you cannot convict the defendant of murder in the first or second degree.

"(30) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence that the deceased cursed, insulted, and abused the defendant by the use of vile language and the application of vile epithets to him, which insults and abuses were being administered by the deceased to the defendant at the time of the shooting, and if such insults, abuses, and epithets were of such character as would so enrage a reasonably prudent man, under like circumstances, as to destroy and dethrone his power of reason, and if such insults and abuses did in fact destroy and dethrone the power of reason of the defendant, so that the defendant did not know or realize what he was doing at the time that he fired the shots, then you should acquit the defendant."

"(42) If the defendant did not intend to kill Howell, then you cannot convict him of murder in the first or second degree.

"(43) If the defendant did not provoke the difficulty, and did and said nothing to bring it on, and could not retreat without increasing his peril, and under such circumstances killed Howell on a sudden provocation, without deliberation and premeditation to kill him, although the provocation consisted only in abusive language, then you cannot convict the defendant of murder in the first degree; and, if the defendant so killed Howell, and at the time and in connection with the insults and abuses Howell threatened to assault and injure the defendant, though such threat and injury were not calculated to produce great bodily harm, then you cannot convict the defendant of murder in the second degree; if such threatened assault or injury was calculated to produce great bodily harm, and was made under such circumstances as to produce in the mind of a reasonably prudent man, and defendant did honestly believe that he was in immediate danger of great bodily harm, then he would not be guilty of any offense, and you should acquit him."

"(45) If the defendant was free from fault in bringing on the difficulty, and could not retreat without increasing his peril, and under such circumstances killed Howell on a sudden provocation without premeditation or deliberation, although provocation consisted only in abusive and insulting language to the defendant, then the defendant would not be guilty of murder in the first degree, and at most would be guilty of murder in the second degree. If the defendant killed Howell, and at the time, and in connection with the insults and abuses, Howell threatened to assault or injure the defendant, and the circumstances were such as would cause a reasonably prudent man to believe, and the defendant did honestly believe, that he was about to be assaulted or injured, though such threatened assault or injury was not calculated to produce great bodily harm, then the defendant, at most, would be guilty of manslaughter in the first degree; but, if the threatened assault or injury to the defendant was calculated to produce great bodily harm, and if the defendant honestly believed, and the conditions and circumstances were such as to cause a reasonably prudent man to believe, that he (the defendant) was in immediate danger of great bodily harm, then the killing would be in self-defense, and should find the defendant not guilty."

Sample & Kilpatrick, of Hartselle, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAYRE J.

Defendant was convicted of murder in the second degree, and sentenced to 40 years in the penitentiary. Numerous exceptions were reserved. We shall state only the reasons for a reversal and such conclusions as may be deemed necessary to another trial.

Defendant killed one Howell under circumstances which may be briefly stated as follows: Defendant had testified as a witness for the prosecution in a case at Hartselle in which deceased was charged with driving an automobile at a speed in violation of law. Deceased, it must be inferred from the evidence, felt greatly aggrieved, and had threatened to give defendant a beating. A few days afterwards. in the afternoon, deceased drove an automobile into Decatur. With him were two of the witnesses who testified for the state at the trial here under review. Without intending to pronounce judgment on the facts we state what followed according to defendant's contention, because defendant had a right to have his version of the facts, so far as supported by tendencies of the evidence, taken into consideration by the jury. It was for the jury to determine the effect of the accusing and the excusing facts, and we do not intend to suggest what their determination should have been. With this in mind, ...