Ex parte Pollard

• Decision Date: 17 June 1915
• Docket Number: 599
• Citation: 193 Ala. 32,69 So. 425
• Parties: Ex parte POLLARD. v. STATE. POLLARD
• Court: Alabama Supreme Court

69 So. 425

193 Ala. 32

Ex parte POLLARD.

POLLARD v. STATE.

No. 599

Supreme Court of Alabama

June 17, 1915

Rehearing Denied July 2, 1915

Certiorari to Court of Appeals.

Ben Pollard was convicted of manslaughter, and on appeal the judgment was affirmed by the Court of Appeals (68 So. 494) and defendant brings certiorari. Writ granted, judgment reversed, and cause remanded.

Anderson C.J., and McClellan and Somerville, JJ., dissenting.

Evins &amp Jack, of Greensboro, for appellant.

William L. Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

MAYFIELD J.

The majority of this court, after a careful examination of this application for certiorari, are of the opinion that the writ should be awarded.

We will not, on application of this kind, review findings of facts made by the Court of Appeals, yet we will and do review questions of law decided by that court, when substantial justice and the rights of litigants depend upon such questions. We are of the opinion that the Court of Appeals erred in affirming the judgment of the law and equity court of Hale county.

Charge 17, requested by the defendant, should have been given by the lower court. It stated correctly an undoubted proposition of law, which was applicable on the trial of defendant. The facts stated in the opinion of the Court of Appeals, we think, show that the proposition of law stated in that charge was necessarily involved. For example, it is said in the opinion, in speaking of the defendant's freedom from fault:

"If we should limit ourselves in considering this question to a narration of the facts as set out in the bill of exceptions, showing only the immediate difficulty or encounter resulting in the defendant's firing the fatal shot, the force of the argument, as applied to these facts alone, on the proposition of freedom from fault, is most convincing."

Then, after speaking of other difficulties preceding the fatal one, which was in the office of the defendant, where he was by the deceased assaulted with a double-barreled shotgun, the Court of Appeals said:

"There was evidence, also, having a tendency to support the theory of the state's contention that when the deceased went into the office of the defendant, at the time the killing occurred, he had as a part of his object in going a purpose to secure or recapture his pistol, that the defendant had taken from him and carried to the office."

This, we hold, made the question of law asserted by this charge applicable and important in this case, on the question of self-defense, which, of course, was an issue. This charge reads as follows:

"I charge you that if Pollard took Payne's pistol from him, either rightfully or wrongfully, Payne had no right to retake it in a manner which involved a breach of the peace."

The Court of Appeals held that it was properly refused, and said of it the following:

"Pollard, the defendant, and not Payne, the deceased, was on trial, and the rights of Payne with respect to repossessing himself of his pistol were not an issue in the case, involving only the guilt or innocence of the defendant of the crime charged against him. Charge No. 17, requested by the defendant, was therefore abstract, and a requested abstract instruction is properly refused. Forman v. State, 67 So. 583. The charge is otherwise objectionable as singling out part of the evidence."

We have shown that the charge was not abstract, by the facts as conceded by the Court of Appeals. The guilt or innocence of the defendant necessarily depended upon the acts and conduct of the deceased on the fatal occasion. The acts and conduct of...