Kuykendall v. Edmondson

• Decision Date: 15 November 1917
• Docket Number: 8 Div. 38
• Citation: 200 Ala. 650,77 So. 24
• Parties: KUYKENDALL v. EDMONDSON.
• Court: Alabama Supreme Court

77 So. 24

200 Ala. 650

KUYKENDALL v. EDMONDSON.

8 Div. 38

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Mary M. Edmondson against C. Kuykendall. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts sufficiently appear. The following charges were refused to the defendant:

(4) The fact that the defendant did not retreat was not a fighting willfully, wantonly, and intentionally.

(5) The fact, if it be a fact, that the defendant did not retreat from the edge of the porch behind the corner of the room, cannot be looked to as a circumstance tending to contradict the defendant's evidence that he shot in self-defense.

(9) The fact, if it be fact, that the defendant could have retreated into his dwelling, and thereby have escaped any danger, if any he was in, and that he did not do so or attempt to do so, cannot be looked to as evidence tending to prove that the defendant fought willingly.

(33) In a case of this kind the plaintiff must offer proof that reasonably satisfies the jury that the defendant was at fault in bringing on the difficulty of the occasion of the killing, and if no more proof on this point is offered than the fact that defendant came around the front yard with his gun and started into his house on a peaceful mission, this would not, without more, constitute fault on his part in bringing on the difficulty.

(37) If it is true that the defendant could have retreated from his front porch to a place of safety, and did not do so you cannot look to his failure to do so as evidence tending to show that his conduct in shooting the defendant [deceased meant] was willful, wanton, and intentional.

(34) It was not wrongful for the defendant to go through his front yard with his gun, even though he may have known that Edmondson had gone to Albertville, and if, after considering all the evidence in this case, you are reasonably satisfied that the defendant did no more than that, and if on discovering defendant with his gun the deceased assaulted him with a pistol, the defendant had the right to use his gun in defending himself from such assault, and if from a careful consideration of all the evidence you are reasonably satisfied that the defendant did no more than this, your verdict should be for the defendant.

(43) If you are reasonably satisfied that at the time the fatal shot was fired the circumstances then surrounding the defendant and then known to him were such as to generate in the mind of a reasonably cautious man, and did in fact generate in the mind of the defendant the honest belief that it was necessary for him to shoot in order to save his own life, or to save himself from serious bodily harm, then, if the plaintiff has failed to prove to your reasonable satisfaction by the evidence in this case that Kuykendall was at fault in bringing on the difficulty on the occasion of the killing, then your verdict should be for the defendant, and in determining whether or not the defendant was at fault in bringing on the difficulty, you cannot look to the fact, if it be a fact, that the defendant did not retreat into his dwelling from his front porch with his gun.

Street & Bradford and John A. Lusk & Son, all of Guntersville, for appellant.

McCord & Orr, of Albertville, for appellee.

McCLELLAN J.

On July 20, 1915, Kuykendall killed plaintiff's (appellee's) intestate, Edmondson, by shooting him with a shotgun. The action is for damages under the homicide statute (Code, § 2486). The defendant (appellant) sought to justify himself by recourse to the doctrine of self-defense. These men had entertained for each other a strong hostility during a long period next preceding the tragedy. Their difference arose over a dispute with reference to a line dividing their farms. They had either fought or threatened to fight on several occasions; and direful threats, each toward the other, are attributed to each of them. When the defendant shot Edmondson, Edmondson was in the public road in his buggy drawn by a mule, and defendant was on his front porch, from which point he fired two shots at Edmondson. Plaintiff's theory was that defendant, being aware that Edmondson had previously during the morning passed up the public road and would likely later return to his home, awaited his anticipated presence in the public road, and was prepared and intended to shoot Edmondson when Edmondson came within shotgun range from the defendant's nearby porch, which design, the plaintiff contended, defendant carried out Edmondson not firing any shot or making any effort to draw his weapon or to fire a shot. On the other hand defendant's insistence was that he (defendant) had, just previous to the shooting, gone to the woods on his place for the purpose of killing a squirrel; that with gun in hand he came around a corner of his dwelling, with a view to entering the house by the way fronting the public road, almost at the same time Edmondson arrived at a point in the road nearly opposite defendant's front steps; that defendant, without then seeing Edmondson, walked up his front steps, with his gun on his shoulder, to the next step to the top, and was brushing dirt off his shoes, when he saw Edmondson stop his mule and give unmistakable signs of a purpose and an effort to draw a pistol from the waistband of his trousers; that defendant then made a step or two to the floor of the porch and thence to a point nearly behind a pillar of the porch, wherefrom he at once fired the first shot at Edmondson, who, the defendant asserts, had by that time fully drawn his pistol; that the mule, frightened by the shot from defendant's shotgun, started with a jump, and, swerving somewhat from the roadway, proceeded about 25 feet, when defendant shot a second time, having, in the meantime, discharged the empty shell and reloaded the single-barrel gun by the use of the automatic mechanism; that between the time the defendant fired the first and second shots Edmondson had his pistol in his hand, ready for use, and continued to face the defendant; that the mule went on down the road, Edmondson, when last seen by defendant, being in the usual sitting posture of one riding in a buggy; and that defendant did not know until some hours afterwards that he had wounded or killed Edmondson.

It is apparent that all of the issues presented by the complaint and by the special pleas were solvable alone by the jury. Having purposely shot Edmondson with a shotgun, it is manifest that the liability vel non of the defendant depended upon whether the justification asserted by the defendant was found by the jury to have been sustained. The jury awarded the plaintiff damages in the sum of $5,000. The appellant has assigned on the record 77 errors, but has expressly waived, in his brief, 23 of these assignments. All of the errors urged in brief for appellant relate to rulings on the admission or rejection of evidence and to the instruction of the jury in giving three special charges requested by the plaintiff and in refusing a large number requested for the defendant. It is impracticable to separately treat all of the upwards of 50 errors assigned. In the main, the restatement in the opinion of the principles applicable to and governing those having at least colorable bases for the insistence of error must suffice.

There was no error in permitting the witness Robert Edmondson to testify that "he saw some places," like sores, on the mule driven on this occasion by his father. Originally this witness stated that it was three or four days after the tragedy that he noted these bloodless places on the mule; but latterly, in connection with the statements indicated, he testified that "it might have been the next day" that he saw these places. The whole facts and circumstances surrounding and relating to the event were admissible including the clothing worn by the deceased, the marks and range of bullets from the defendant's gun on the vehicle, the person and clothing of deceased, on the animal being driven by him, if such there were, on the trees, and the presence and location of wads from the gun found in the yard. There were important, earnestly controverted issues to which these circumstances bore an evident relation. Rollings' Case, 160 Ala. 82, 49 So. 329. The direction in which the defendant fired the first and the second shots at Edmondson, the defendant being at the time practically stationary on his veranda, and the vehicle, with Edmondson in it, in motion forward after the first shot, was material to the phase of the inquiry involved in the relative location of the parties when the two shots were fired. It is not inappropriate to note at this point that, according to the doctrine of the following decisions, the court erred in defendant's favor in excluding the witness Edmondson's statement that the marks on the mule "looked like shot places": Perry's Case, 87 Ala. 30, 6 So. 425; Walker's Case, 153 Ala. 31...