Harris v. Wright, 8 Div. 267.

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, J.
• Citation: 144 So. 834,225 Ala. 627
• Parties: HARRIS v. WRIGHT.
• Docket Number: 8 Div. 267.
• Decision Date: 27 October 1932

144 So. 834

225 Ala. 627

HARRIS
v.
WRIGHT.

8 Div. 267.

Supreme Court of Alabama

October 27, 1932

Rehearing Denied Dec. 15, 1932.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action under homicide statute by Clara Wright, as administratrix of the estate of Thomas E. Wright, deceased, against William E. Skeggs. From a judgment for plaintiff, defendant appeals; revived in the name of Julian Harris as administrator of the estate of William E. Skeggs, deceased.

Reversed and remanded.

GARDNER and KNIGHT, JJ., dissenting. [144 So. 835]

O. Kyle, S. A. Lynne, and A. J. Harris, all of Decatur, for appellant.

Tennis Tidwell, of Decatur, for appellee.

GARDNER, J.

The action is under our homicide statute (Code 1923, § 5696), with verdict and judgment for plaintiff. Defendant admitted the killing, and sought to justify upon his plea of self-defense, upon which issue the evidence was conflicting. In such a plea all the elements of self-defense should appear (Drummond v. Drummond, 212 Ala. 242, 102 So. 112), including that of defendant's freedom from fault ( Wilhite v. Fricke, 169 Ala. 76, 53 So. 157).

Assignments of error 5 and 6 as to rulings on demurrers to pleas 2 and 3 are not well taken. Moreover, it appears these pleas originally contained such averment, though defective in form, and the amendment thereof merely cured such defect, and did not change the pleas in substance and effect. No injury, therefore, in any event, could have resulted to defendant from this ruling.

Appellant insists there was reversible error in the refusal of charges G and H, relying upon Morris v. McClellan, 169 Ala. 90, 53 So. 155; Riley v. Denegre, 201 Ala. 41, 77 So. 335; Ashworth v. Ala. Great So. R. R. Co., 211 Ala. 20, 99 So. 191, 194; and Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710. It is the established rule, however, that a requested charge be so framed that it will not mislead, and that the principle of law involved be correctly stated or expressed. Turner v. Birchfield, 224 Ala. 316, 140 So. 381. The language of these charges indicates the view that, upon defendant establishing all elements of self-defense, save that of freedom from fault, the burden of proof shifts to the plaintiff. But our cases recognize what has been termed a "nice distinction" (Starke v. Comer, 190 Ala. 253, 67 So. 440) between the burden of proof, which, strictly speaking, never shifts from the affirmative to the negative, and the "duty of going forward with the evidence" which frequently shifts as a result of prima facie proof or legal presumption. Starke v. Comer, supra; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Mutual Life Ins. Co. v. Maddox, 221 Ala. 292, 128 So. 383. The charges ignored this distinction, and this, without more, justified their refusal. We are aware of the expression in some of our cases where this distinction is not observed (among them we may note Buffalow v. State, 219 Ala. 407, 122 So. 633), but such phraseology in the opinions does not serve to eliminate the distinction and render the language of the charge less inaccurate.

In Birmingham Trust & Savings Co. v. Acacia Mut. Life Ass'n, 221 Ala. 561, 130 So. 327, it was held that the court's failure to observe this distinction in charging the jury was not error to reverse, but such holding in no wise justifies a reversal of the trial court's ruling in refusing a charge which fails to observe such distinction. An observance of accuracy in instructions to the jury should be encouraged, rather than condemned.

Moreover, defendant received the benefit of these charges in charge 13, given in his behalf, which relieved him of all burden of proving his freedom from fault and entitled him to a verdict in his favor if the jury was reasonably satisfied from the evidence of the other elements of self-defense hypothesized therein. The jury, under this charge, were not concerned with the administrative rule as to the duty of going forward with the evidence, and this given charge was more favorable than those refused. In no event, therefore, could error to reverse be said to appear. So. Rwy. Co. v. Pruett, 200 Ala. 675, 77 So. 49.

Pleas 2 and 3 contain affirmative averments of freedom from fault, under which form of pleading the case of Mt. Vernon-Woodberry Mills v. Little, supra, justified the refusal of charge 1 in Riley v. Denegre, supra, followed in Parke v. Dennard, 218 Ala. 209, 118 So. 396, on the matter of burden of proof in the pleas of justification therein interposed. The argument as to the exception to the oral charge of the court constituting assignment 32 is rested upon the theory that plea 4 contained no such affirmative averment, and therefore the burden of proof was misplaced. But we think it clearly demonstrated by a reading of the preceding language...