Green v. State

• Citation: 143 Ala. 2,39 So. 362
• Parties: GREEN v. STATE.
• Decision Date: 18 March 1905
• Court: Alabama Supreme Court

39 So. 362

143 Ala. 2

GREEN v. STATE.

Supreme Court of Alabama

March 18, 1905

On Rehearing, June 30, 1905.

Appeal from Tuscaloosa County Court; Robison Brown, Special Judge.

"To be officially reported."

Jim Green was convicted of murder in the second degree, and appeals. Reversed.

On request of counsel, the general charge of the court to the jury was given in writing. The defendant reserved exceptions to parts of such charge, shown as follows: (1) To a part charging "If a slayer has any time to think before an act, however short such time may be, even a single moment and does think, and then strikes the blow as a result of an intention to kill produced by this momentary operation of the mind, and death ensues, this would be a deliberate and premeditated killing within the meaning of our statutes defining murder in the first degree." (2) To a part as follows: "If a killing is done with a wickedness or depravity of heart towards deceased, and the killing is determined on beforehand, and after reflection for however short a time, it is murder in the first degree." (3) "Evidence of the turbulent, bloodthirsty and dangerous character of the deceased, is competent and proper to enable the jury to determine the degree of the offense, and the character of the punishment." (4) "Before the defendant can avail himself of the doctrine of self-defense the jury must believe from the evidence that the defendant was reasonably without fault in bringing on the difficulty that there must have existed at the time either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, impending and imperious necessity to shoot in order to save his own life, or to save himself from great bodily harm; and there must have been no other reasonable mode of escape, by retreating or avoiding the combat, with safety." (5) "Before the defendant can avail himself of the doctrine of self-defense, the jury must believe from the evidence that the defendant was reasonably without fault in bringing on the difficulty."

On written request of the state, the court gave to the jury the following charges: "(1) Gentlemen of the jury, I charge you that when a defendant sets up self-defense in justification or excuse of a killing, the burden of proof is on him to show to the jury by the evidence, that there was a present impending danger, real or apparent, to life or limb or of grievous bodily harm, from which there was no other possible means of escape." "(2) If the defendant, in this county, and before the finding of this indictment, purposely killed Moach Williamson by shooting him with a pistol, with a wickedness or depravity of heart against said deceased, and the killing was determined on beforehand (for however short a time before the fatal shot was fired, is immaterial), he is guilty of murder in the first degree." "(3) I charge you, that before a jury can acquit the defendant on the ground of self-defense, three essential elements must occur: 1st, the defendant must be reasonably without fault in bringing on the difficulty, and must not be disregardful of the consequences in this respect of any wrongful words or act; 2d, there must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, impending, imperious necessity to shoot in order to save his own life, or to save himself from great bodily harm; and, 3d, there must have been no other reasonable mode of escape, by retreating, or by avoiding the combat with safety." "(4) When it comes to a question whether one man shall flee or another man live, the law demands that the former shall flee rather than the latter shall die." "(5) When one is menaced by an assault, the following inquiries present themselves: 1st, Is he free from fault in bringing on the difficulty? 2d, Is there reasonable room and ground for escape from injury? 3d, Is the threatened assault of such nature that, if perpetrated, it is likely to produce death or great bodily harm? All these considerations enter into and qualify the right to resist with deadly weapon." "(6) The court charges the jury, that to make the plea of self-defense available, the defendant must be without fault. If he was himself the aggressor, he cannot invoke the doctrine of self-defense, even if the deceased struck him, and whether the necessity to take the life of the deceasd was real or only apparent, if brought about by design, connivance or fault of the defendant, he cannot be excused on the plea of self-defense." "(7) Murder is frequently committed in sudden encounters, into which the parties enter mutually, in which the party slain strikes the first blow. Murderers sometimes provoke an enemy to strike them, that they may then kill under a supposed protection that the law then gives the slayer. It is supposed only, for in law and in fact, it is most atrocious murder."

The defendant requested, in writing, and the court refused charges numbered and as follows: "(1) It is not necessary that a man should be actually and really in danger of great bodily harm, or that retreat would actually and really increase his danger, in order for him to be justified in taking the life of his assailant. He has the right to act upon the reasonable appearance of things. If the circumstances are such as to justify a reasonable man in the belief that he is in great danger of bodily harm, and that he cannot retreat without adding to his peril, and he honestly believes that such is the case, then he has the right to kill his assailant in his own defense, although as a matter of fact, he was in no actual danger, and retreat would not have endangered his personal safety." "(2) To justify the defendant in killing Moach Williamson, it is not necessary that he should have been in actual danger of bodily harm; but it is sufficient if the defendant believed, and the circumstances were such as to impress the mind of a reasonably prudent man that he was in immediate danger of great bodily harm from Williamson, and there was no way open for him to retreat without increasing his peril. If at the time of the killing, the defendant was in danger of losing his life, or of suffering great bodily injury at the hands of the deceased or if the circumstances surrounding the defendant at the time of the killing were such as to create in the mind of a reasonable man the honest belief, and the defendant honestly believed that he was thus in danger, and if the defendant could not have retreated from the deceased without increasing his peril, then the jury must acquit the defendant."

Upon the retirement, the presiding judge directed that the jury take with them the general written charge of the court.

McClellan, C.J., and Denson, J., dissenting in part.

Henry Fitts and Henry R. Jones, for appellant.

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

The defendant moved to quash the venire, because the court ordered one special venire of 50 jurors for the trial of several distinct and separate capital felonies, including the one against defendant; and because when this case was called and put upon trial, the names of several of the special venire on the regular panel for the week, as drawn and called, were engaged in the trial of another cause set for trial on that day, and the defendant, against his objection was required to proceed and select a jury from the remaining jurors without reference to those engaged in the trial of the other case.

If the special act of the Legislature for Tuscaloosa county, touching the drawing and impaneling of juries in capital cases in the law and equity court of that county, is not unconstitutional, as it is contended by the defendant it is, the motions were without merit and properly overruled, since the proceedings had, were in accordance with that statute. Loc. Acts 1903, p. 309; Rambo v. State, 134 Ala. 71, 32 So. 650; Dorsey v. State, 107 Ala. 157, 18 So. 199.

Section 6 of the act "to establish the Tuscaloosa county law and equity court" (Acts 1896-97, p. 265) provides "That in the absence of any special jury law for the county of Tuscaloosa, the grand and petit juries for said court shall be drawn and empanelled and sworn in the same manner as is or may be hereafter provided by law in respect to grand and petit juries in the circuit courts of the state. But in case of a special jury law for Tuscaloosa county, the jurors for said court shall be drawn, summoned and empanelled, and selected in the manner provided in such special law for said county, provided, however, that the judge of said court may order jurors to be drawn, summoned, empanelled and selected at any time and for any number...