Lovelady v. State

• Decision Date: 04 August 1931
• Docket Number: 8 Div. 306.
• Citation: 24 Ala.App. 502,136 So. 871
• Parties: LOVELADY v. STATE.
• Court: Alabama Court of Appeals

136 So. 871

24 Ala.App. 502

LOVELADY v. STATE.

8 Div. 306.

Court of Appeals of Alabama

August 4, 1931

As Modified on Denial of Rehearing October 6, 1931.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Norman Lovelady was convicted of manslaughter in the first degree and he appeals.

Reversed and remanded.

Instruction regarding benefit of doubt whether defense of self-defense was made out held properly refused as ignoring doctrine of retreat.

The following charges were refused to defendant:

"8. The court charges the jury that if defendant was free from fault in bringing on the difficulty, he was under no obligation to retreat, unless you believe he could have retreated without increasing his danger, or with reasonable safety.

"9. The court charges the jury that 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 are satisfied, from all the evidence in the case, that the circumstances attending the striking of the fatal blow were such as to impress the defendant, with a reasonable belief that at the time of the striking the blow it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty."

"11. The court charges the jury that if they find from the evidence that the deceased, at the time the blow was struck, was making an assault on the defendant, and that the defendant, in resisting said assault, used force not greatly disproportionate to the character of the assault, and death accidentally resulted, this would be self-defense, and the jury should acquit him.

"12. The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he did the cutting before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."

"14. If you find from the evidence in this case that the stab or cut in question was given by the defendant under the influence of sudden passion as that term has hereinbefore been defined, and that the knife used was not calculated to produce death in its usual customary and ordinary use, that is as a weapon, the knife would not ordinarily produce death, and further believe that there was no intention on the part of defendant to kill the deceased, then you cannot convict the defendant of manslaughter in the first degree.

"15. I charge you that if upon considering the evidence in this case you have therefrom a reasonable doubt as to whether the defendant had reason to believe as a reasonable man, that he was in imminent danger of being killed or seriously injured by the deceased, at the time he cut the deceased, then you will find the defendant not guilty.

"16. I charge you that the defendant as a reasonable man, knowing what he knew, and seeing what he saw, had a right to act upon the appearances as they presented themselves to him as a reasonable man; and if the defendant as such reasonable man, knowing what he knew, and seeing what he saw, had a right to believe and did believe from such appearances that he was about to suffer great bodily harm at the hands of Norris, and that if, acting alone upon that belief, he cut Norris, then I instruct you that the defendant is entitled to an acquittal at your hands.

"17. I charge you that if you find from the evidence that defendant was first attacked by Norris in such a way that, to save his own life, or to save himself from grievous bodily harm, it was necessary for him to kill deceased, the defense of self defense is made out; and if there is a reasonable doubt in your minds whether this defense is made out, the defendant is entitled to the benefit of that doubt.

"18. I charge you that if you believe from the evidence that the deceased was a boy or young man of superior strength to defendant, and that by reason of such superior strength he was regarded by defendant as able to do him serious bodily injury, or kill him without arms, and that deceased was unarmed and defendant knew of said fact, if it was a fact, and further believe from the evidence that said Norris assaulted defendant, or by his words or acts produced in the mind of defendant a reasonable apprehension of fear of assault, and that said defendant honestly so believed at the time that he was in such danger, he had the right to defend himself with all necessary force, viewing the matter from his standpoint in the light of all the surrounding facts and circumstances, provided you find from the evidence the defendant was free from fault in bringing on the difficulty and had no reasonable mode of retreating at the time."

"C. The Court charges the jury that if the state's witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether."

"X. If you find from the evidence that in the beginning of the affray, all the defendant said or did, was to say to Bruce Norris, without anger and without the purpose to offend or provoke Norris: 'What did you break' and 'what will your daddie say when he comes from town,' then I charge you this alone did not bring on the difficulty so as to prevent the defendant from invoking self defense."

Lynne & Lynne, of Decatur, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

SAMFORD J.

The defendant, a boy seventeen years old, and weighing 110 pounds, was indicted for the killing of another boy twenty-one years old and weighing 160 pounds, by stabbing him with a knife. The boys had been friends and associates from infancy, but on the day of the homicide there was a half-gallon fruit jar of whisky; the big boy drank some of it, a falling out between the friends, an assault by the dead boy, and the stabbing by the defendant, from which the deceased died.

For the purposes of this opinion, it will be unnecessary to set out the evidence. It will suffice to say that the evidence for the state tended to prove a case of manslaughter, if no higher degree, while the evidence for defendant tended to prove a clear case of self-defense, which would justify the homicide. These were all questions for the jury, and, as the affirmative charge is not insisted upon, the evidence will not be commented on further in that connection.

The court refused to give at the request of the defendant in writing charge 3, as follows: "The court charges the jury that if they are not satisfied beyond a reasonable doubt that, when the defendant struck with his knife, he intended to kill Norris, or that the act was one from which death or great bodily harm would ordinarily, or in the usual course of events, follow, they must acquit the defendant of manslaughter in the first degree."

This charge has been held good in Lewis v. State, 96 Ala 6, 11 So. 259, 38 Am. St. Rep. 75; Harrington v. State, 83 Ala. 16, 3 So. 425, and Williams v. State, 83 Ala. 19, 3 So. 616. But, since the case of Edwards v. State, 205 Ala. 160, 87 So. 179, which was based on Davis v. State, 188 Ala. 59, 66 So. 67, charges requiring acquittal, unless the jury is convinced beyond a reasonable doubt, must be...