Ex parte State ex rel. Atty. Gen., 8 Div. 553

• Decision Date: 13 April 1950
• Docket Number: 8 Div. 553
• Parties: Ex parte STATE ex rel. ATTORNEY GENERAL. MAY v. STATE.
• Court: Alabama Supreme Court

Page 698

45 So.2d 698

253 Ala. 517

Ex parte STATE ex rel. ATTORNEY GENERAL MAY v. STATE.

8 Div. 553.

Supreme Court of Alabama.

April 13, 1950.

A. A. Carmichael Atty. Gen, and Jas. L. Screws, Asst. Atty. Gen., for petitioner.

Scruggs & Scruggs, of Guntersville, opesed.

BROWN, Justice.

The Court of Appeals reversed the judgment of conviction because the solicitor did not lay a proper predicate for the admission of testimony showing contradictory statements of witnesses made out of court as impeaching their testimony given on the trial by calling to the attention of the witness on cross-examination the alleged contradictory statements, giving the time, place and person to whom the same were made. Bridges v. State, 225 Ala. 81, 142 So. 56; Pittman v. Calhoun, 231 Ala. 460, 165 So. 391; Couch v. Hutcherson, 243 Ala. 47, 8 So.2d 580, 141 A.L.R. 697.

The Court also predicated error to reverse on the refusal of the appellant's charge 29 couched in the following language: 'The Court charges the jury that the law gives a person the same 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.' [Italics supplied.] This charge was first approved in Twitty v. State, 168 Ala. 59, 68-69, 53 So. 308, 312, on the theory as stated in the opinion that, 'It does not profess to set out the ingredients of self-defense but dealt only with the question as to whether great bodily harm threatened in equal to life threatened, so as to justify the use of force.' [Italics supplied.] This holding was reaffirmed in Hayes v. State, 225 Ala. 253, 142 So. 675. (See Charge 10 on page 255 on the same ground.)

The fact that this identical charge (charge 3) was condemned in Robinson v. State, 213 Ala. 691, 692, 106 So. 134, 136, because it 'failed to state that defendant was free from fault' was overlooked. A similar charge, charge 2, was held refused without error because it substituted 'as is due' instead of 'as it does' immediately before 'to prevent * * * life [from] being taken.' Richardson v. State, 204 Ala. 124, 85 So. 789, 795.

The charge would be free from criticism if the last clause, 'He may excusably use this necessary force to save himself from any felonious assault' had been omitted. This statement in the charge not only renders it misleading but inherently unsound in that it authorizes the use of such force to defend against a 'felonious assault' provoked by the defendant, and left it to the jury to determine what constituted a 'felonious assault.'

The case of Twitty v. State, 168 Ala. 59, 68-69, 53 So. 308, which holds that it was error to reverse to refuse charge 12 in that case and Hayes v. State, 225 Ala. 253, 142 So. 675, holding that it was error to reverse to refuse charge 10 in that case are here modified for the reasons stated in this opinion.

Moreover the oral charge and the special written charge 35 given for the defendant...