Langham v. State

• Decision Date: 14 January 1915
• Docket Number: 164
• Citation: 68 So. 504,12 Ala.App. 46
• Parties: LANGHAM v. STATE.
• Court: Alabama Court of Appeals

68 So. 504

12 Ala.App. 46

LANGHAM v. STATE.

No. 164

Court of Appeals of Alabama

January 14, 1915

On Rehearing, February 2, 1915

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Charlie Langham was convicted of manslaughter, and he appeals. Affirmed.

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

(2) If, after looking at all the evidence in the case, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt whether defendant acted upon the well-grounded and reasonable belief that it was necessary to shoot and take the life of John Bell to save himself from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle defendant to an acquittal, provided there was no reasonable mode open to defendant to retreat without increasing his peril.

(4) Unless you believe beyond all reasonable doubt from the evidence in this case that defendant shot John Bell intending at the time to kill him, and that such shooting was unlawful you must find defendant not guilty. (17) It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life, but, if the jury is satisfied from all the evidence in the case that the circumstances attending the firing of the fatal shot were such as to impress defendant with the reasonable belief, and that defendant did believe that at the time of the firing of the fatal shot that it was necessary to shoot in order to prevent death or great bodily harm to a person, then you must acquit.

(18) The proof shows that the killing was done in a sudden rencounter, and defendant sets up the defense that he did the killing in his own necessary defense. If you believe from the evidence that at the time of the killing defendant had the right as a reasonable man to believe and did believe from the language and conduct of John Bell, taken in connection with the previous threats which are in evidence, that defendant was at the time he fired the fatal shot in danger of death or great bodily harm, and that to have attempted to have retreated from the position in which he was at the time would have been dangerous to life and limb, then he had the right to take the life of John Bell.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

BROWN, J.

The necessity that will excuse the taking of human life must not have been produced or invited by the wrongful act or word of the slayer. He must be mindful of his acts or conduct which are likely to produce a deadly combat; and, if his acts or conduct show a willingness to enter into combat, or if his acts or words in any way invite it, in the eye of the law he has produced a necessity for slaying his adversary, and he cannot invoke the doctrine of self-defense. It is not enough that he is reasonably free from fault. He must be entirely free. Brewer v. State, 160 Ala. 66, 49 So. 336; Reese v. State, 135 Ala. 13, 33 So. 672; Stallworth v. State, 146 Ala. 8, 41 So. 184.

The evidence is without conflict that the defendant killed the deceased by shooting him with a pistol; that the fatal rencounter occurred on Sunday evening at Sullivan's gin near Castleberry; and the evidence tended to show that immediately before the fatal shots were fired the deceased struck the defendant with a knife closed in his hand inflicting a slight wound on the defendant's face. Just before the difficulty occurred the defendant was driving along the road in the direction of Castleberry, and passed the deceased and the witness Thornton standing on the side of the road, when deceased accosted the defendant, saying to him that he wanted to see him a minute. The defendant testified that at the time deceased spoke to him he did not see deceased and Thornton, but after deceased spoke he looked and saw them standing on the side of the road, and that he replied to deceased that he could not stop until he got across the bridge, that he would wait for him after he crossed the bridge, and that he stopped and waited for the deceased, who came on up behind the buggy, and invited him off to one side to speak to him a minute, and that deceased and the defendant walked off to one side toward Mr Sullivan's gin, where they talked about half a minute. The evidence tends to show that the subject of this conversation was some "talk" that the defendant had had about the sister of the deceased, and the deceased was demanding a retraction of what the defendant had said about deceased's sister, or proof that defendant had not made such statements; that thereupon the defendant and the deceased returned to the defendant's buggy, where Thornton and several others persons had assembled, and there a wordy altercation took place between the defendant and the deceased, and deceased struck the defendant on the face knocking him back against the buggy, and the defendant drew his pistol and fired. The evidence further tends to show that, as a result of a rivalry between defendant and the deceased in their attention to a young lady whom the defendant afterward married, bad blood existed between them, and the defendant proved that a short time before the killing the deceased told Jim Burch that he (deceased) "would kill the damn son of a bitch" (referring to the defendant), and that this threat was communicated to the defendant a short time prior to the killing.

Communicated threats made by the deceased against the defendant, in connection with the evidence tending to show that deceased was a man of known violent and bloodthirsty nature, were admissible as a basis for more prompt action on the part of the defendant to defend himself against a felonious assault threatened by overt act or hostile demonstration; and in such cases the law recognizes the right of one so threatened to act more promptly and on slighter overt act or demonstration than it would in the absence of such proof. Beasley v. State, 181 Ala. 32, 61 So. 259; Jackson v. State, 78 Ala. 471; Storey v. State, 71 Ala. 330.

This principle, however, is confined exclusively to defensive measures, and it furnishes no excuse or palliation for aggressive action in the absence of an overt act or demonstration sufficient to impress the mind of a reasonable man that a felonious assault is threatened, and has no application where the necessity to defend against such assault has been produced by wrongful act, word, or deed on the part of the slayer. Beasley v. State, supra; De Arman v. State, 71 Ala. 355. The threat of the deceased to take the life of the defendant, in connection with the ill will or bad blood that existed between them, and the nature of the deceased as a violent, bloodthirsty person, imposed upon the defendant the duty of being extremely cautious in his conduct toward the deceased, and the doing of any act by him under these circumstances that contributed to bringing on a difficulty would deprive him of the right of self-defense. Reese v. State, 135 Ala. 13, 33 So. 672; Stallworth v. State, 146 Ala. 8, 41 So. 184.

In view of the threat of the deceased, and the evidence tending to show bad blood or ill will between the deceased and the defendant, in connection with the other evidence in the case, it was a question for the jury as to whether or not the defendant was at fault in not disregarding the request of the deceased for him to stop, and in stopping and engaging in a wordy altercation with the deceased, which brought about the fatal rencounter resulting in the killing. The application of these principles justifies the action of the court in refusing charge 2 requested by the defendant. This charge ignored the evidence tending to show that the defendant was not entirely free from fault. The case of Harris v. State is easily differentiated from this case. In that case the only evidence that the defendant was at fault in bringing on the difficulty was a mere "inference" from the tendency of the state's evidence toward showing that he fired the first shot after the door was opened, and charge 6 in that case does not ignore this inference, but submits the question to the jury, and instructed them that, if they had a reasonable doubt as to whether the defendant shot before the impending necessity arose, the defendant was entitled to that doubt; the burden of proof on that issue being on the state. The court said:

"The defendant being under no duty to retreat, and there being no evidence that he was at fault in bringing on the difficulty, other than by way of inference from that tendency of the state's evidence toward showing that he fired the *** shot after the door was opened, he should not have been convicted, if the jury from all the evidence entertained a reasonable 'doubt whether he acted upon the well-grounded and reasonable belief that it was necessary to shoot and take the life of Lovelace to save himself from great bodily harm or *** death, or that he shot before such impending necessity arose.' If the jury could not say beyond all reasonable doubt which of these states of fact in reality existed, they could not say with that near approach to certainty which the law requires that he acted under circumstances which did not justify him in taking life; the onus of proving the circumstances, in so far as they bore upon the question of defendant's fault in bringing on the difficulty, being on the prosecution." Harris v. State, 96 Ala. 27, 11 So. 257.

In the case of Beasley v. State, 181 Ala. 28, 61 So. 259 there was no evidence tending to show that the defendant was at fault, and it was on that theory and the further theory that there were tendencies in the evidence that White made a murderous assault on Beasley before he fired the...