Kirby v. State

• Decision Date: 27 June 1890
• Citation: 89 Ala. 63,8 So. 110
• Parties: KIRBY v. STATE.
• Court: Alabama Supreme Court

8 So. 110

89 Ala. 63

KIRBY v. STATE.

Supreme Court of Alabama

June 27, 1890

Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge.

The defendant in this case, Walter Kirby, was indicted for the murder of Hill Pitman, by shooting him with a gun, and was convicted of murder in the second degree. In addition to the defendant excepting separately and severally to each sentence and paragraph of the charge given by the court, the defendant also reserved separate exceptions to the following paragraphs: "(13) If the defendant killed Pitman in this county, before the finding of this indictment, by shooting him with a gun intentionally and on purpose, he would be guilty, unless the evidence shows there was a lawful reason for doing the act, or mitigating the offense." "(16) In order to escape on self-defense, the defendant must have occupied a certain position; the first of which is that he must have been free from fault in provoking or bringing on the difficulty which resulted in the killing. If he did anything to provoke or bring on the difficulty, he cannot be guiltless, although in that difficulty it became necessary for him to kill Pitman, in order to save his own life, or prevent great harm to his body. (17) If there was a concurrent wrangle of abusive words between the parties at the camp, and defendant was aware of and participated in it to any extent, or was present, and hearing it, not discouraging, but assenting, thereto, and there was a challenge or proposition made and accepted to meet half-way and the deceased came back about half-way, and then, upon those at the camp not going out, threatened, or said to them that he would again meet them half-way, and the response from the camp was, in substance, 'Come ahead,' or 'Come on,' and this was not recalled, and the deceased thereupon started on towards the camp, and the defendant then shot and killed him, the defendant would not be free from fault." The defendant also excepted to the following charge, which the court gave at the written request of the prosecution: "(3) It is not a sufficient excuse for the killing that the deceased merely had the means at hand to effect a deadly purpose, but he must have indicated at the time, by some act or demonstration, a present intention to carry out such purpose, thereby inducing on the part of Kirby a reasonable belief that it was necessary to take the life of Pitman to save his own." The defendant thereupon requested the following charges in writing, and duly excepted to their refusal by the court: "(1) In considering the conduct of the defendant and Coon, which had any tendency to provoke an attack from the deceased and Morgan, it is the duty of the jury to consider conduct in connection with the fact, if it be proved, that before the gun was fired defendant and Coon notified them that they were not going to leave their wagons, and tried to get them to go back. (2) The law does not require that the defendant should have retreated from his wagon to avoid killing his assailant if he was in fact assailed in such manner as to produce a reasonable fear that his life was in peril, or that he was about to suffer some grievous bodily harm from his assailant. (3) The jury must acquit, unless the evidence is so strong as to exclude from their minds a reasonable supposition that the defendant fired the fatal shot from a fear, reasonably excited by the conduct of the deceased, that his own life was in peril, or that he was about to suffer grievous bodily harm, and the danger need not be real; it is sufficient if it appeared to be so. (4) If the defendant fired the fatal shot from a reasonable apprehension that he was about to suffer great bodily harm, or that his own life was in peril, it is the duty of the jury to acquit; and if they have a reasonable doubt as to this it is likewise their duty to acquit. (5) Although the jury may believe that the defendant fired the fatal shot on purpose, yet, before they can convict, they must be satisfied beyond a reasonable doubt that, at the time, he was not acting under the reasonable belief that his own life was in danger, or that he was about to suffer some grievous bodily harm. (6) To enable the defendant to avail himself of the principle of self-defense, it is not necessary that he was threatened with actual danger to life or limb but it is sufficient that he acted under a reasonable fear that his own life was in danger, or that he was about to suffer some grievous bodily harm."

Gardner & Wiley, for appellant.

W. L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

"Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. But there is no affinity between the blood relatives of the husband and the blood relatives of the wife." The juror Bryant being a cousin of the step-father of the deceased was related by affinity to the mother of deceased, but bore no relation to deceased himself, and was a competent juror. Paddock v. Wells, 2 Barb. Ch. 333; Solinger v. Earle, 45 N.Y. Super. Ct. 80.

The proposed testimony of the witness Tisdale as to what Morgan and deceased told him with reference to the scene of the difficulty, and to the effect that Morgan "got behind a stooping-post oak tree" was mere hearsay, and properly excluded on that ground.

There was no error in excluding the declarations of the deceased offered to be proved by the witness A. M. Jones. If it be conceded that as to deceased's declarations that "if he lived the defendant should not be harmed for what he had done, if he could help it; that if he died he did not want the defendant harmed; if a man had come to him in the same way he would have shot him; he did no more than any other man would have done,"-a sufficient showing that deceased was at the time under a sense of impending death was made, yet all of these declarations were offered together. Some, at least, if not all of them, did not relate to the identity of the criminal, or the facts and circumstances of the killing within the limits of this class of evidence, (Sylvester v. State, 71 Ala. 17,) and all of them were, therefore, properly excluded, (Warren v. Wagner, 75 Ala. 188.) With respect to the evidence of this witness, that deceased told him "it was behind a stooping-post oak at the fork of the road that Morgan got," no predicate as for the admission of dying declarations was attempted to be laid, and without this, as we have seen, the statement of deceased was hearsay only and inadmissible.

Defendant and another stopped for the night by the road-side, with their wagons and teams. Deceased and Morgan, later in the night, traveled along the road, and when they reached defendant's camp, began cursing and abusing the parties in the camp for having left one of their wagons partly in the beaten track of the roadway so that deceased and Morgan were forced to drive to one side out of the regularly traveled way, but still within the road, in order to pass. This was the inception of the difficulty. There was a conflict in the testimony as to whether the wagon was really left in the road. The defendant himself testified that it was not so left,...