Johnson v. State

• Decision Date: 09 October 1952
• Docket Number: 6 Div. 387
• Citation: 60 So.2d 818,257 Ala. 644
• Parties: JOHNSON v. STATE.
• Court: Alabama Supreme Court

Page 818

60 So.2d 818

257 Ala. 644

JOHNSON v. STATE.

6 Div. 387.

Supreme Court of Alabama.

Oct. 9, 1952.

David McKay Enslen, Fayette, for appellant.

Si Garrett, Atty. Gen., L. E. Barton, Asst. Atty. Gen. and Chas. C. Carlton, Montgomery, of counsel, for the State.

The following charges were refused to defendant:

'(A). If the deceased made a sudden, unprovoked, murderous attack upon defendant, the deceased at the time being armed with a deadly weapon, and, in the act of effectuating upon the defendant his murderous purpose, and after considering all the evidence in the case you find this to be true, then I charge you that the defendant was under no duty to retreat but had the right to stand his ground and to kill his assailant.

'(B). I charge you, Gentlemen of the Jury, that a citizen may repel force by force in defense of his person against one who manifestly intends or endeavors by violence or surprise to take his life, and if the defendant was entirely free from fault in bringing on the difficulty and did not enter the fight willingly and in good faith believing that he was in imminent peril, the defendant was not obliged to retreat and under such circumstances defendant had the right to take the life of the deceased.'

GOODWYN, Justice.

Lewis Johnson was indicted for and convicted of murder in the second degree, and, as punishment therefor, was sentenced to imprisonment in the penitentiary for twenty-five years.

The tendency of the State's evidence was that the defendant made an unprovoked assault upon the deceased, Esau Wilson, by hitting him with his fist, thereby breaking the deceased's neck and causing his death. There was no dispute that defendant struck the deceased with his fist 'about five times'. The theory of the defense was that the deceased provoked the difficulty and was the aggressor; that he 'kidded' the defendant about defendant's wife, and cursed him and came at him with an open knife; that nothing happened immediately prior to the difficulty to indicate that deceased would attack the defendant; that the attack was sudden and unprovoked; that the knife with which deceased was armed was a deadly weapon; and that he hit the deceased only in self-defense.

The defendant is not represented by counsel on this appeal, but was ably represented at the arraignment and trial by counsel appointed by the trial court. Accordingly, no brief has been filed on his behalf. But this is not essential to a consideration by this Court of an appeal by a defendant in a criminal case. Code 1940, Tit. 15, § 389; Hymes v. State, 209 Ala. 91, 92, 95 So. 383.

In discussing section 3258 of the Code of 1923, which is included in the Code of 1940 as section 389 of Title 15, Mr. Justice Brown, in the case of Wesson v. State, 238 Ala. 399, 191 So. 249, 250, stated as follows:

'It has been said that this statute, construed in pari materia with others embodied in said chapter, makes the right of appeal in criminal cases one of substance imposing on the court a duty to search the record for errors.'

We have carefully examined the record and have searched for errors prejudicial to the defendant. Our conclusion is that the record is free of error, except as to the refusal to give defendant's requested charge A.

This charge and charge 4 approved in the case of Walker v. State, 220 Ala. 544, 548, 126 So. 848, 852, are identical. In holding the charge good in the Walker case, Mr. Justice Brown stated as follows:

'The doctrine asserted in this charge 4 is fully recognized in our decisions, the decisions of other jurisdictions, and by text-writers, and is firmly established as part of the law of self-defense. * * *

'Where the evidence is conflicting, and phases of it support the pertinent hypothesis, it becomes a question for the jury, and the authorities are uniform in holding that it is the right of the accused to have instructions given based on any material hypothesis which the evidence tends to establish.'

This principle has been consistently approved by this Court. In the case of Alabama Produce Co. v. Smith, 224 Ala. 688, 690, 141 So. 674, 676, it was stated as follows:

'* * * And a party to the suit has the right to request instructions to the jury based on the hypothesis of evidence in his favor; thus the respective jury questions may be succinctly stated. Such charges are not objectionable when based on a partial view of the evidence, since the opposite party may request charges founded on a contrary material hypothesis which the evidence tends to establish. * * * It is further established that a charge is not considered abstract when there is a tendency of evidence, 'however weak and inconclusive,' to support the hypothesis on which it is based * * *, and from which the jury can and are authorized to draw an inference supporting that hypothesis; an inference 'they believe to be reasonable."

In the case of Hays v. State, 225 Ala. 666, 145 So. 134, charge A, there refused to defendant, was the same as charge 4 in Walker v. State, supra, and the same as charge A now under consideration. Chief Justice Anderson, in writing the opinion for the Court in the Hays case, stated as follows:

'While the duty to retreat, generally speaking, is an essential element of self-defense, there is a well-recognized exception to the general rule, and that is, when a person is in actual or apparent imminent peril of losing his life, or of serious bodily harm from an assault by the deceased which was unprovoked and manifestly murderous in character, and deceased was then in the act of effectuating his murderous purpose by the use of a deadly weapon, the defendant is under no duty to retreat, but may stand his ground and defend himself.--Scruggs v. State, 224 Ala. 328, 140 So. 405; Walker v. State, 220 Ala. 544, 126 So. 848; Beasley v. State, 181 Ala. 28, 61 So. 259; Matthews v. State, 192 Ala. 1, 68 So. 334.

'While there was a conflict in the evidence, the defendant's proof showed that at the time the defendant fired the fatal shot the deceased was making an unprovoked effort to shoot him with a pistol, and, this being true, the trial court erred in refusing his requested charge A.

'This charge was not covered by the given charges or the oral charge of the trial court. Indeed, the excepted...