Doswell v. State

• Decision Date: 21 June 1949
• Docket Number: 4 Div. 89.
• Citation: 42 So.2d 480,34 Ala.App. 546
• Parties: DOSWELL v. STATE.
• Court: Alabama Court of Appeals

42 So.2d 480

34 Ala.App. 546

DOSWELL v. STATE.

4 Div. 89.

Alabama Court of Appeals

June 21, 1949

Rehearing Denied July 19, 1949.

J. N. Mullins, Jr., and J. N. Mullins, of Dothan, for appellant.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.

The following charges were refused to defendant:

'10. The law gives a person the right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault.'

'15. It is not necessary under the evidence in this case that the defendant should have been actually in danger of death or great bodily harm at the time he shot the deceased in order for him to be justified in shooting the deceased. 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 the deceased in the light of any threats that the evidence shows the deceased 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 the danger of great bodily harm or death and he honestly believed such to be the case, then he had the right to shoot the deceased in his own defense although as a matter of fact he was not in actual danger; and if the jury believes that the defendant acted under such conditions and circumstances as set out above, the burden of showing that the defendant was not free from fault in bringing on the difficulty is on the State, and if not shown the jury should acquit the defendant.

'16. Ordinarily, one may not repel the attack of an unarmed man by killing him; for, ordinarily, such an attack does not furnish reasonable ground for the apprehension of great or grievous bodily harm; but it does not follow that in every such case the great bodily harm which the law of self-defense contemplates can never be inflicted by blows with hands or feet. That may depend upon circumstances such as great disparity between the parties in the matter of physical power or other peculiar conditions.

'17. A man has the right to use such reasonable force as may be necessary, under the circumstance by which he is surrounded, to defend himself from great bodily harm, that he has to prevent his life being taken; and he may excusably use this necessary force to repel any felonious assault.'

HARWOOD, Judge.

This appellant, George W. Doswell, was indicted for the murder of his son, John Ivey Doswell. His jury trial resulted in a verdict and judgment of guilty of manslaughter in the first degree and sentence to the penitentiary for a term of five years.

The evidence tends to show that the appellant and his deceased son occupied houses in close proximity in Henry County.

Late in the afternoon of June 12, 1948 the deceased and one Frank Roland were at deceased's home and both were drunk.

Mrs Bessie Doswell, wife of the deceased, accompanied by Mrs. Jeraldine Woodham, sister of deceased, and daughter of appellant, saw appellant, and Mrs. Bessie Doswell told appellant that 'she had cooked dinner under a shotgun,' and that she did not know what she was going to do.

Mrs. Woodham returned with Mrs. Bessie Doswell to her home. At this time Mrs. Roland and others were escorting Roland away.

The deceased came out of his house and sat on a concrete block located near the corner of appellant's garden.

The appellant walked in his garden to a point near the deceased, a fence separating them. According to Mrs. Bessie Doswell the appellant shook his fist at deceased and told him in substance that he, appellant, had worked hard to get his place and deceased was not going to run him off.

The deceased then went up by the side of the fence, and into appellant's garden through a gate, and approached appellant.

According to witnesses for the State the appellant shot deceased as he was some five or six feet away. One shot was fired which hit deceased in the cheek. His death resulted quickly.

Witnesses for the defense testified that at the time deceased was shot he had attacked appellant and was in the act of choking him.

The defense introduced evidence tending to show that deceased was a strong man 36 years of age, weighing around 165 pounds, and that he was violent, turbulent, and dangerous when drinking.

The appellant was 69 years of age and weighed around 130 pounds, and was in frail condition due to some prior accident.

The only inference that can be drawn from the evidence in this case is that this killing occurred within the curtilage of appellant's home. We think under the evidence presented that this was a case in which the court should have, as a matter of law, instructed the jury that appellant's garden was within the curtilage of his home. Madry v. State, 201 Ala. 512, 78 So. 866, and cases therein cited. In his oral charge however the court submitted this determination to the jury as a question of fact. No objection to the court's charge in this instance was reserved however.

It further appears that in the...