Howard v. State

• Decision Date: 28 May 1896
• Citation: 20 So. 365,110 Ala. 92
• Parties: HOWARD v. STATE.
• Court: Alabama Supreme Court

20 So. 365

110 Ala. 92

HOWARD v. STATE.

Supreme Court of Alabama

May 28, 1896

Appeal from city court of Montgomery; W. S. Thorington, Special Judge.

Henry Howard appeals from a conviction. Affirmed.

The appellant was indicted for an assault with intent to murder one Ike Micou, and was convicted of an assault and battery and fined $140. The evidence for the state, as shown by the bill of exceptions, tended to show that Ike Micou, while riding along a neighborhood road, towards his dwelling stopped in front of the house of the defendant, and called out the latter, and had a conversation with him, which resulted in a quarrel; that upon Micou's riding away, the defendant called him back and invited him to fight; that thereupon Micou dismounted from his mule, and immediately the defendant fired upon him with a pistol, wounding him. The state also proved that Micou was unarmed, and made no hostile or threatening demonstrations towards the defendant. The evidence for the defendant tended to show that bad feelings existed between Micou and himself, and that on the day of the shooting, Micou called the defendant out to his gate and commenced abusing him, and that just as Micou rode off, the defendant came out of his yard into the road; that Micou stopped his mule, dismounted, started back towards the defendant, cursing him and threatening to whip him; that when Micou was within a few steps of the defendant and continuing to advance, he thrust his hand in the direction of his hip pocket, and that thereupon the defendant drew a pistol and fired. This being substantially all the evidence in the cause, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (2) "The law does not require a person who is assaulted, and who has been reasonably free from fault in bringing on the difficulty, to retreat when, from the circumstances of the case, he has reason to believe that he is in great danger of life and limb from his assailant, and that to retreat would expose him to greater danger to life and limb than to meet and resist his assailant." (3) "The jury must not merely believe that the defendant had an opportunity and means of retreat to avoid the difficulty, but they must also believe from the evidence, beyond a reasonable doubt, that the defendant had no reasonable grounds to suppose that, in retreating, he would more greatly endanger his life and limb from his assailant, than by standing and meeting his attack if the jury believe from the evidence that the defendant was attacked."

Wm. C Fitts, Atty. Gen., for the State.

HARALSON J.

1. The second charge asked by defendant was properly...