Kirby v. State

• Decision Date: 15 May 1907
• Citation: 44 So. 38,151 Ala. 66
• Parties: KIRBY v. STATE.
• Court: Alabama Supreme Court

44 So. 38

151 Ala. 66

KIRBY v. STATE.

Supreme Court of Alabama

May 15, 1907

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

Jim Kirby was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The following charges were requested by defendant and refused:

"(8) I charge you that, if the defendant took the life of John Fuller in defense of his own, it is your duty to acquit the defendant.

"(9) I charge you that, if the defendant killed the deceased in self-defense, then you will find him not guilty.

"(10) I charge you that if the defendant at the time of the killing entertained a reasonable apprehension involving imminent peril to life or limb, and could not retreat in safety or without putting himself at a greater disadvantage, then the killing would not be wrongful, and it would be the duty of the jury to acquit the defendant."

(11) Same as 10, with slight change of verbiage.

"(13) I charge you that, if you believe from the evidence that the defendant would have placed himself at a greater disadvantage by retreating, then he was relieved by law of the duty of decedent."

"(15) I charge you the defendant could not have retreated without placing his life in greater jeopardy, then he was relieved by law of the duty of retreating, unless the jury believe that the defendant was at fault in bringing on the difficulty.

"(16) I charge you that, if you are in doubt as to the guilt of defendant, then you shall find the defendant not guilty.

"(17) I charge you that, in all matters in which there is a doubt you shall resolve the doubt in favor of the defendant."

"(34) I charge you that, if the jury are in doubt of the guilt or innocence of the defendant, then they shall acquit the defendant."

"(18) I charge you that, before you can find the defendant guilty, you must be satisfied beyond a reasonable doubt and to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it was wholly inconsistent with every other rational conclusion, and unless the jury is so convinced by the evidence of the defendant's guilt that they would each venture to act upon the decision in matters of highest importance to their own interest, they must find the defendant not guilty."

"(21) I charge you that in cases of homicide the very highest degree of proof is required before you can convict."

"(29) I charge you that, if the evidence is evenly balanced, you should lean towards the side of mercy and decide in favor of the defendant.

"(30) I charge you that, in taking into consideration the dying declaration of the deceased, you are authorized to take into consideration the fact that the deceased is not under oath, and that he was likely to be influenced against the defendant."

(31) Same as 30, in legal effect.

"(32) I charge you that the crime of murder consists of four elements--willfulness, deliberation, malice, and premeditation; and, unless the state has convinced you beyond a reasonable doubt and to a moral certainty as to the existence of these four elements in the offense of which the defendant's stands charged, then you shall acquit the defendant."

"(39) I charge you that the possession of a deadly weapon may be explained, so that no presumption against the defendant may arise.

"(40) I charge you that, if you find from the evidence that the defendant was required in the performance of his duties as a guard to carry a gun, then you shall not take this fact as an evidence of any murderous or malicious intention on the part of the defendant."

"(42) I charge you that, in connection with the evidence that the defendant was in possession of a deadly weapon at the time of the killing, you shall take into consideration the evidence that the defendant was a guard and was required to go armed."

"(44) I charge you that if you believe from the evidence that the deceased, together with any person or persons, had planned to take the life of the defendant on the night of the killing, and did make an attempt to carry out their plan, then the act of the deceased would not be unlawful, and it would be your duty to acquit the defendant.

"(45) I charge you that, if you find from the evidence that the deceased did assault the defendant and did threaten to take his life, then you shall acquit the defendant."

"(47) I charge you that if the evidence shows that the deceased assaulted the defendant, and further threatened to shoot him, and the defendant was unable to retreat, so as to remove himself from harm, then you shall consider the killing unlawful, and shall find the defendant not guilty.

"(48) I charge you that if you find from the evidence that the deceased assaulted the defendant, and further threatened to kill him, and the defendant was not at fault in bringing on the difficulty, and could not have retreated without increasing his peril, then you shall acquit the defendant.

"(49) I charge you that the law gives every man the right to protect his life and person from a threatened assault, and if the defendant was not at fault in bringing on the difficulty, and could not have retreated without increasing his peril, then you shall acquit the defendant."

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

Under an indictment charging that "Jim Kirby unlawfully and with malice aforethought killed John Fuller, whose name is to the grand jury otherwise unknown, by shooting him with a pistol," Jim Kirby was tried and convicted of manslaughter in the first degree and sentenced to imprisonment in the penitentiary for a period of eight years. The record appears to be regular, and we shall write with respect to the rulings of the court on the admissibility of evidence and charges refused.

Groomster, the first witness examined for the state, made out a case of homicide without any provocation on the part of the deceased. In other words, on this witness' evidence, self-defense could not be predicated. Therefore whether or not the deceased was armed or had a pistol in a scabbard that he was wearing, in the absence of a showing, or of an offer to show, by the witness, that deceased attempted to draw or use the pistol, or that he attempted to do violence to defendant, the court cannot be put in error for sustaining objections to questions, propounded by defendant to the witness, seeking to evoke such testimony in respect to the pistol. This covers the first, second, third, and fourth exceptions.

In respect to all other exceptions (except the thirteenth) reserved to rulings made on questions propounded to the witness Groomster, the matters called for by the questions either transpired after the difficulty between defendant and Fuller, or are not shown to have transpired at the time of the difficulty, and are not shown to be a part of the res gestæ. They are without merit.

The general character of Fuller for violence was not in issue at the time Groomster was asked if he knew the general character of the deceased for violence. Therefore the court did not err in sustaining the solicitor's objection to the question, and the thirteenth exception is without merit.

Dr. Edwards was asked if he was called to see a man named Fuller. Objection was made on the ground that the question did not identify the deceased. If there was any merit in the objection at the time it was made, the witness subsequently identified the man he was called to see as John Fuller. For this reason the ruling of the court on the objection cannot be made ground for reversible error, and the fourteenth exception cannot avail defendant anything.

Taking Dr. Edwards' evidence given on the direct examination, together with that given by him on the redirect examination, it cannot be doubted that a sufficient predicate for the admission of dying declarations was shown, and the fifteenth and nineteenth exceptions are without merit. Sims' Case, 139 Ala. 74, 36 So. 138, 101 Am. St. Rep. 17.

Dr Edwards testified that a portion of the statement made by the deceased was written down by witness, and he identified a paper writing, handed to him by the solicitor, as containing the dying declaration of John Fuller, made to witness, and written by witness at the time the declaration was made. On the solicitor's offer to introduce the...