Holland v. State, 1 Div. 951.

• Decision Date: 24 February 1931
• Docket Number: 1 Div. 951.
• Citation: 24 Ala.App. 199,132 So. 601
• Parties: HOLLAND v. STATE.
• Court: Alabama Court of Appeals

132 So. 601

24 Ala.App. 199

HOLLAND v. STATE.

1 Div. 951.

Court of Appeals of Alabama

February 24, 1931

Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.

Henry Holland was convicted of manslaughter in the first degree and he appeals.

Reversed and remanded.

In murder prosecution, where state's attorney stated that human life had become too cheap, court's remark, in giving exception, "I think so too," was error.

The following charges were refused to defendant:

"3. The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a wellfounded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he cut before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."

"12. The court charges the jury that if the defendant was free from fault in bringing on the difficulty he would be under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety."

"15. The court charges the jury that the bare fear of the commission of the offense, to prevent which the defendant used a deadly weapon, is not sufficient to justify it; but the circumstances must be sufficient to excite the fear of a reasonable man, and the attacking party must have acted under the influence of such fear alone. It is not necessary, however, to justify the use of a deadly weapon, that the danger be actual. It is enough that it be apparent danger; such an appearance as will induce a reasonable person in defendant's position to believe that he was in immediate danger of great bodily harm. Upon such appearances the party may act with safety; nor will he be held accountable, though it would afterwards appear that the indication upon which he acted was wholly fallacious, and that he was in no actual peril. The rule in such a case is this: what would a reasonable person, a person of ordinary caution, judgment, and observation, in the position of the defendant, seeing what he saw and knowing what he knew, honestly believe from the situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in imminent danger, then, the defendant would be justified in believing himself in such peril, and in acting upon such appearance."

"18. The court charges the jury that if they find from the evidence that the deceased, at the time he was cut, was making an assault on the defendant, and that the defendant, in resisting said assault, used force not greatly disproportionate to the character of the assault, and death accidently resulted, this would be self-defense, and the jury should acquit him."

Norborne Stone, of Bay Minette, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD J.

The indictment charged murder in the first degree. At the trial the solicitor, with the approval of the court, took a nol. pros. as to the charge of murder in the first degree, and the cause proceeded to trial on the charge of murder in the second degree. The verdict of the jury found the defendant guilty of manslaughter. The evidence for the state tended to sustain the charge of murder, and that for the defendant tended to establish the plea of self-defense. The evidence being in conflict, the general charge was properly refused.

The deceased came to his death as the result of a knife wound inflicted by defendant at about 1 o'clock at night. The state, over the objection of defendant, was permitted to prove by the sheriff that the next day he found the body on the back seat of an automobile, at the scene of the fatal difficulty, and that there was no knife on or about the body. The evidence for defendant tended to prove that deceased had a knife at the time of the difficulty, and that in the difficulty deceased had cut at defendant, cutting his shirt in two places. The shirt of defendant with two places cut was exhibited to the jury. It is insisted that the testimony of the sheriff that he found no knife on or about the person of deceased on the day following the night of the difficulty, is too remote to be relevant to the issue being tried. The evidence was negative and of little probative force, and while somewhat remote from the time of the fatal difficulty, we hold that it was not improper to allow the sheriff of the county to testify as to the surroundings at the time he found the body. This would include a description of the locus in quo and everything...