Kizziah v. State

Citation32 Ala.App. 197,23 So.2d 19
Decision Date07 August 1945
Docket Number6 Div. 155.
PartiesKIZZIAH v. STATE.
CourtAlabama Court of Appeals

Beddow Ray & Jones, of Birmingham, and J. Monroe Ward and J. R Bealle, both of Tuscaloosa, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

Notwithstanding the large number of witnesses who testified upon the trial of this case, as disclosed by the voluminous transcript, there was but slight conflict in the evidence on material matters.

The defendant was charged by indictment with the offense of assault with intent to murder. Specifically, that he, unlawfully and with malice aforethought, did assault Lewis Stephens with the intent to murder him, etc.

The trial resulted in the conviction of the defendant of the offense charged in the indictment. In accordance with this verdict of the jury, the court adjudged him guilty of assault with intent to murder and sentenced him to imprisonment in the penitentiary for a period of twenty years. Judgment of conviction was duly pronounced and entered, from which this appeal was taken.

The testimony in this case without dispute or conflict disclosed that the two principals, the defendant Kizziah, and the injured party, Lewis Stephens, were on bad terms with each other, and had been for a long period of time. The testimony likewise discloses, that both of these men have a bad character. There had been former difficulties between them, and threats also.

The assault complained of in the indictment occurred about 9:00 at night in a pool room where a large number of persons were present, many of whom testified as witnesses upon the trial of this case, and the testimony, practically without dispute or conflict, tended to show that Lewis Stephens, the injured party, was, with others, leaning against an unoccupied pool table watching a game of pool being played on the table adjoining, at which time this appellant approached from the rear of the pool room and in close proximity shot Stephens twice. At the first shot Stephens straightened up and started for the door, and appellant shot him again, both bullets hit him, the first shot penetrated his left arm entering from the back, and the second shot hit him in the back, whereupon Stephens fell to the floor and several of the witnesses testified the defendant approached close to him and pointed his pistol at the prostrate man, whereupon Stephens said 'you have done killed me Red, don't shoot me any more'; at which time witness Harris, the proprietor of the pool room, 'hollered at Kizziah and told him not to shoot him any more, and defendant then went on out at the door.'

Dr. Grover Shamblin, whose qualifications were admitted, testified that Lewis Stephens was brought to the Druid City Hospital the same night he was shot and that he examined him. He was asked, 'Did he have any bullet wounds in his body and about his arm?' Ans. 'Yes, there is one--the main one that caused the greatest portion of attention was the one that was in his back. * * * The bullet went in here (indicating and showing the bullet wound on defendant's back to the jury) the bullet ranged into the spinal column and cut the spinal cord and from the very beginning he was paralyzed.' He also testified: 'He is permanently paralyzed from all volition, * * * and he can't stand on his legs, and will never be able to walk again.' In answer to the question, 'Was that wound he received in his back, Doctor, a wound that was calculated to produce death?' he answered: 'Yes, the majority of them die paralyzed that high. * * * He will never by any better.'

The law is, where a person possessed of mental faculties intentionally kills or maims his fellow man, by shooting him with a pistol, there can be but one defense; that is, self-defense, and in order to sustain the plea of self-defense it must appear (1) that the perpetrator was free from fault in provoking or bringing on the difficulty; (2) is there reasonable room and ground for escape from injury? Is the threatened assault of such nature as, if perpetrated, it is likely to produce death or grievous bodily harm? In other words, the essential elements of self-defense are: First, that the defendant must be free from fault, must not say or do anything for the purpose of provoking a difficulty, nor be unmindful of the consequences in this respect of any wrongful word or act; second, there must be no convenient mode of escape by retreat or by declining the combat; and, lastly, there must be a present impending peril to life or danger of great bodily harm, either real or apparent, as to create the bona fide belief of an existing necessity.

In the case at bar there is no evidence to sustain any of the essential elements of self-defense above enumerated. By the defendant's own testimony this clearly appears. As a witness in his own behalf he testified, among other things, referring to Lewis Stephens:

'He came in and I was standing there by Floyd's table where he was playing and I had my jacket on and he pulled at my jacket and says 'Come on back here and I will give you a drink' and I says, 'Lewis, I am going to ask you again to leave me alone; I don't want a thing you've got,' and they went to the back room and come back and they went around there on that side of the table (indicating) and I was standing up here at the cash register and walked over there where Floyd was. He was still playing pool where he had been playing and when I was sitting over there, he looked around at me and says to me 'I have got something in my pocket for you, you red headed son-of-a-bitch,' and I says, 'If you've got something for me, bring it out and go to shooting.'

'Q. What did he do? A. He had his hands in his overcoat pocket like this (illustrating) and that is the way he did it (illustrating).

'Q. Did he turn toward you? A. He whirled around to me; he got up off the table; he was sitting like this and when he whirled like that (illustrating) I fired twice.

'Q. When he...

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1 cases
  • Raines v. State, 3 Div. 923
    • United States
    • Alabama Court of Criminal Appeals
    • 12 de junho de 1984
    ...not have been in imminent danger of suffering death or grievous bodily harm at the hands of deceased."). See also Kizziah v. State, 32 Ala.App. 197, 198-99, 23 So.2d 19 (1945); Riddle v. State, 25 Ala.App. 142, 143, 142 So. 680, cert. denied, 225 Ala. 218, 142 So. 682 A court should not ins......

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