Langston v. State

• Decision Date: 29 May 1917
• Docket Number: 8 Div. 416
• Citation: 16 Ala.App. 123,75 So. 715
• Parties: LANGSTON v. STATE.
• Court: Alabama Court of Appeals

75 So. 715

16 Ala.App. 123

LANGSTON v. STATE.

8 Div. 416

Court of Appeals of Alabama

May 29, 1917

Appeal from Circuit Court, Morgan County; Tennis Tidwell, Special Judge.

Bob Langston was convicted of manslaughter, and appeals. Reversed and remanded.

The following charges were refused to defendant:

(2) If there is a probability of defendant's innocence the jury should acquit him.

(5) I charge you that it was not necessary for defendant to retreat because the facts in the case show that defendant was in his own castle.

(6) 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 a well-founded and reasonable belief that it was necessary to take the life of deceased to save himself from great bodily harm and death, or that he shot before such impending necessity arose, then this is such a doubt as would entitle defendant to an acquittal.

(7) To constitute putting one at fault in bringing on a difficulty, he must do a wrongful act or say a wrongful word to a party, or must do or say something to such other for the purpose of insulting or angering him, or do or say something with the view of bringing on the difficulty.

(8) The defendant had a lawful right to order deceased to leave his home, and this he had a right to do for a reason or without a reason.

(10) If you find from the evidence that the killing was done while defendant was within the refuge of his home, I charge you that defendant, within this refuge, may stand at bay, and may repel and kill his assailant, if this be apparently necessary to save his own life; nor is he bound to escape from his house in order to avoid his assailant. When a man is attacked in one part of his home, he need not withdraw to another part, though he may safely do so, and there find secure asylum.

(11) The law gives a person the right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault.

(12) If you find from the evidence that defendant was assaulted by Hill, and that he himself was without fault, and that defendant reasonably apprehended death or great bodily harm to himself unless he killed his assailant, then the killing was justifiable.

(13) The law is that, if any person attempts murder of another, and is killed in such attempt, the slayer shall be acquitted and discharged; the law will justify the taking of life when it is done from necessity, to prevent the commission of a felony.

(15) I charge you as matter of law that the hall from which defendant is alleged to have fired the fatal shot constitutes a part of his house.

Callahan & Harris and Wert & Lynne, all of Decatur, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

BRICKEN J.

This is the second appeal taken in this case. The former opinion will be found reported in 8 Ala.App. 129, 63 So. 38.

The defendant was indicted for murder in the first degree. On the former trial he was convicted of manslaughter in the first degree, and on appeal to this court the judgment was reversed, and cause remanded for new trial. Upon the trial appealed from in this instance he pleaded former jeopardy as to murder in the first and second degree, which plea was confessed by the state, and he was tried for manslaughter in the first degree. During the progress of the trial numerous exceptions were reserved to the rulings of the court on the evidence and to the court's refusal to give a number of written charges requested by the defendant. Exception was also reserved to that part of the oral charge of the court which undertook to define manslaughter in the first degree.

The portion of the oral charge complained of was as follows: "Manslaughter is the voluntary killing of a human being." At the conclusion of the court's oral charge, in open court, and before the retirement of the jury, the defendant reserved an exception to that part of its oral charge to the jury where the court defined manslaughter in the first degree as follows: "Manslaughter is the voluntary killing of a human being." The court declined to modify or correct this definition, and the defendant duly and legally excepted. This question is therefore presented: Is this a correct and legal definition of the offense of manslaughter in the first degree? If not, wherein does it fail? The statute does not attempt to define manslaughter, so we must look to the common law for its definition. Smith v. State, 68 Ala. 430. The constituents of the offense as defined by the common law are "the unlawful killing of another without malice, either expressed or implied." 3 Brickell's Digest 218,§ 560; Smith v. State, supra; Thomas v. State, 139 Ala. 85, 36 So. 734. There can be no manslaughter unless it is the result of an unlawful act and unless death resulted from such act. Smith v. State, 154 Ala. 31, 45 So. 626. Therefore a charge which pretermits the fact that the act was unlawful is incorrect and does not properly state the law. Smith v. State, 154 Ala. 31, 45 So. 626. If the charge omits the important qualifying clauses "unlawful" and "without malice," it is bad. Hornsby v. State, 94 Ala. 55, 10 So. 522. The charge condemned in Hornsby's Case, supra, is practically identical with that part of the court's oral charge in this case to which the court's attention was specifically called, and to which the exception was reserved upon the court's refusal to modify or correct this definition. A sheriff, in the proper discharge of his duty under the order of court, where a defendant has been tried and convicted of murder in the first degree, or other capital felony, and duly sentenced to death, may voluntarily deprive a human being of life. A soldier upon the battlefield may voluntarily deprive a human being of his life, and many other instances could be cited wherein the voluntary killing of a human being could in no sense be termed manslaughter in the eyes of the law. Thus it would appear that the exception in this instance was well taken; and, in the absence of further instructions from the court as to what constitutes manslaughter in the first degree, error in this instance would have been apparent.

However the giving of written charge...