Fitch v. State, 8 Div. 173
Decision Date | 17 April 1979 |
Docket Number | 8 Div. 173 |
Citation | 372 So.2d 1328 |
Parties | Joe Ray FITCH v. STATE. |
Court | Alabama Court of Criminal Appeals |
Harvey B. Morris and Michael E. Brodowski, Huntsville, for appellant.
Charles A. Graddick, Atty. Gen. and Linda A. Breland, Asst. Atty. Gen., for the State.
Upon a trial for murder in the first degree, defendant was convicted of murder in the second degree. The jury fixed his punishment at thirty-five years imprisonment, and he was sentenced accordingly.
The undisputed evidence shows that about 7:30 P.M. September 14, 1976, at Harbin's Grocery in Maysville, Madison County, Alabama, defendant killed the alleged victim, Lloyd Holder, by shooting him with a pistol. One bullet entered the victim's chest and two bullets entered his back. Defendant was in his truck at the time and the victim was standing near the truck. Defendant claimed self-defense, and there was considerable evidence, including his own testimony, to the effect that the victim had cursed him profusely and had threatened to kill him. The victim was drunk, and there was some evidence that defendant had been drinking.
The tragedy was foreshadowed by a heated argument between the defendant and the victim, which occurred two or three hours before at a spring in another part of Maysville. Defendant swore to it on direct examination, as follows:
The next meeting of the two was at Harbin's Grocery Store, and soon thereafter the fatal encounter occurred.
The jury evidently concluded that the killing was not justified under the principles of self-defense but that the homicide was not committed with premeditation and deliberation. No contention is made that the evidence is not sufficient to support the verdict, and we see no reasonable basis for such a contention.
Appellant limits his appeal for a reversal of the judgment to the assertion that the court committed reversal error in refusing each of the following charges requested in writing by defendant
Charge 6 is an old acquaintance of the appellate courts of Alabama. As recently as Tillman v. State, Ala.Cr.App., 360 So.2d 1074, cert. denied 360 So.2d 1075 (Ala.1978), the refusal of substantially the same charge was held to constitute reversible error, the court noting that the principle embodied in the charge was not covered by other instructions of the court. In King v. State, Ala., 356 So.2d 1220, rev'g 356 So.2d 1216 (1977), it was held that the refusal of such a charge was saved from error by reason of its substantial coverage by portions of the court's oral charge. We must therefore determine whether the principle contained in the particular charge was covered by other instructions of the court.
The trial court gave the jury in its oral charge lengthy instructions as to the necessity for the establishment by the evidence of the guilt of defendant beyond a reasonable doubt, including the following:
Refused Charge 6 was fairly and substantially covered by the court's oral charge. Its refusal does not justify a reversal.
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