Early v. State
| Decision Date | 15 June 1943 |
| Docket Number | 6 Div. 986. |
| Citation | 31 Ala.App. 488,18 So.2d 873 |
| Parties | EARLY ET AL. v STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 30, 1943.
Appeal from Circuit Court, Walker County; R. L. Blanton Judge.
Troy Green, a witness for the state, testified that he was present when the shooting occurred. On cross-examination he testified that he had "come up there to see Lawrence Wilson," and was asked, "You had come up there to get some liquor, hadn't you?" and "What did you go over there to see him about?" The objections of the State to these questions were sustained.
State's witness Wilson testified that he was present when the shooting occurred. On cross-examination he was asked "How many people came to see you that morning?" Objection by the State to this question was sustained.
These charges were refused to defendants:
3. "I charge you that if these defendants did not provoke the difficulty, and were free from fault in bringing it on, and Elzie McDaniel threw a rock or attempted to use a rock on these defendants, and had beaten up Nath Early with an automobile jack, and he acted in so doing in such a manner as to indicate to a reasonable man that his intention was to do great bodily harm to Nath Early, and the defendant believed that he was in danger of great bodily harm, or believed that Nath Early was in danger of great bodily harm, then the defendants were authorized to anticipate Elzie McDaniel and shoot, and if the jury has a reasonable doubt on this, you must find the defendant not guilty."
6. "I charge you that if these defendants at the time Mr. Early shot McDaniel were apparently in danger of receiving great bodily harm at the hands of McDaniel, whether in fact there was any real danger or not, then the defendant had the right to fire the shot to protect himself or to protect his son, if he was free from fault in bringing on the difficulty, and if you believe this from all the evidence in this case, you cannot convict these defendants."
14. "The court charges the jury that if this defendant was without fault in bringing on the difficulty, and if, at the time of the shooting, there appeared so apparently as to lead a reasonable mind to believe that there actually existed a present impending and imperious necessity in order to save his son, Nath Early, from great bodily harm to shoot Elzie McDaniel, then he had a right to shoot him, and the jury must acquit him on the grounds of self-defense."
Pennington & Tweedy and T. K. Selman, all of Jasper, for appellant.
Wm. N. McQueen, Acting Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
Elbert Early and his son, Arvle Early, appeal from a conviction of the killing of one Elzie McDaniel. Elbert Early, the father, fired the fatal shot from a shotgun, as he and his said son were travelling in an automobile being driven by Arvle Early on a public road in a mining community of Walker County.
Deceased had been in a serious and rather protracted altercation with Nath Early, another son of Elbert Early. At the time of the fatal shooting the two appellants were coming to the scene of this difficulty, presumably to aid or to rescue Nath, who was being, or had been, badly worsted in the affray by the deceased, who was considerably more of a man, physically, than Nath. As the car approached, deceased was walking down the road toward Nath, apparently to resume the fight with him. But, when he discovered the Early car approaching, with the two occupants (appellants), he stepped or "staggered" to the roadside, picked up two large rocks and hurled them, or one of them, at the car. Thereupon, Elbert Early, who was on the back seat, level the gun from the window and fired the one, fatal shot which killed McDaniel. Appellants' counsel, in able argument, have presented the only propositions meriting special treatment, so discussion is limited to them.
One of the contested issues arising from the conflicting evidence was whether or not the shooting was justified upon the ground of self defense. The shooting occurred while the two defendants were in their automobile on a public road, when, according to their testimony, they were being attacked by deceased. The evidence afforded no basis for the contention that the father fired the shot at deceased in defense of his other son, Nath, for at this time it was not Nath, but the two appellants who were being assaulted and if anyone was at this time in any immediate peril it was one or the other of the appellants.
The essential elements of self defense, as established by a wealth of decisions, are so well known that repetition here seems unnecessary. West's Alabama Digest, Vol. 11, Homicide, k 109.
The fatal difficulty having thus occurred at a place where all three of the elements of self defense (Jackson v. State, 77 Ala. 18, 25) must co-exist in order to justify the homicide and acquit Elbert Early of his act, the special requested charges of appellants which ignored the doctrine of retreat and omitted this requisite were incorrect statements of the applicable law and therefore correctly refused by the trial court. Notably deficient in this regard are charges numbered 3, 6, and 14, urged by appellants as proper, but the refusal of which, we think, can be thus adequately justified.
Furthermore, even if it could be said that there was some testimony affording an inference that the shooting was in defense of Nath Early--which we fail to perceive --the said charges were still subject to the same criticism (others aside), inasmuch as the evidence is in conflict as to whether or not Nath was on his own premises at the time the two appellants appeared on the scene, and when deceased was killed.
A material issue presented by the evidence was whether or not the shooting was in defense of either or both of the appellants. Tending to sustain this defense was their testimony that deceased assaulted appellants with rocks as they drove up in the car. In corroboration of this, Arvle Early testified upon direct examination that the rocks hit the top of the car and left "dents" on it. Upon cross examination, with reference to this, he was interrogated and testified as follows (rulings and exceptions are included):
To continue reading
Request your trial
-
Grady v. State
...would justify its refusal. King v. State, 233 Ala. 198, 171 So. 254; Danley v. State, 27 Ala.App. 402, 173 So. 648; Early v. State, 31 Ala.App. 488, 18 So.2d 873; Seekers v. State, 35 Ala.App. 40, 44 So.2d 628; Freeman v. State, 37 Ala.App. 623, 74 So.2d "Refusal of the charge is further ju......
-
Pierce v. State
...a ruling from the trial court. We cannot correct the imperfection in testimony without a ruling by the trial court. Early v. State, 31 Ala.App. 488, 18 So.2d 873; Bethune v. State, 26 Ala.App. 72, 153 So. 892; Crawley v. State, 22 Ala.App. 336, 115 So. Appellant insists that he was denied t......
-
Petty v. State
...would justify its refusal. King v. State, 233 Ala. 198, 171 So. 254; Danley v. State, 27 Ala.App. 402, 173 So. 648; Early v. State, 31 Ala.App. 488, 18 So.2d 873; Seekers v. State, 35 Ala.App. 40, 44 So.2d 628; Freeman v. State, 37 Ala.App. 623, 74 So.2d Refusal of the charge is further jus......
-
Griffin v. State
...would justify its refusal. King v. State, 233 Ala. 198, 171 So. 254; Danley v. State, 27 Ala.App. 402, 173 So. 648; Early v. State, 31 Ala.App. 488, 18 So.2d 873; Seekers v. State, 35 Ala.App. 40, 44 So.2d 628; Freeman v. State, 37 Ala.App. 623, 74 So.2d 'Refusal of the charge is further ju......