Madry v. State

• Decision Date: 09 May 1918
• Docket Number: 8 Div. 86
• Citation: 201 Ala. 512,78 So. 866
• Parties: MADRY v. STATE.
• Court: Alabama Supreme Court

78 So. 866

201 Ala. 512

MADRY v. STATE.

8 Div. 86

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Lawrence County; R.C. Brickell, Judge.

Richard Madry was convicted of murder, and he appeals. Affirmed.

Callahan & Harris, of Decatur, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

SAYRE J.

Shortly after defendant had shot deceased, and perhaps while deceased still showed some faint signs of life, the wife of the latter appeared upon the scene. Evidence for the state tended to show that defendant, standing near with his pistol in his hand, told the wife not to go to her husband's body. Evidence for defendant went to show that the knife of deceased lay upon the ground near his body. While defendant was on the stand as a witness his counsel put this question:

"I will ask you whether or not you told her not to go to the body because you wanted the knife identified before the body was moved?" Afterwards, on the state's motion defendant's affirmative answer was excluded. The record, which we have thus in effect reproduced in order to identify and make clear the first exception argued for appellant, shows no error. What passed between defendant and the wife of deceased was not any part of the res gestae of the killing--the wife was some distance away when the shooting occurred--and the testimony which defendant sought to keep before the jury was nothing more than a statement of the defendant's undisclosed purpose or motive in ordering the wife of deceased to stay away from his body, testimony which was inadmissible according to a long line of adjudicated cases in this state, many of which were noted in Western Union Tel. Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann.Cas.1912B, 534.

In its oral charge the court, stating the doctrine of retreat as a part of the law of self-defense said to the jury that "there must have been no way of retreat open to the defendant." Not to be too critical, it may be said, perhaps, that a more satisfactory statement of the doctrine would have been that there must have been no avenue of escape reasonably apparent to defendant, or that defendant must have honestly and reasonably believed that he could not retreat without adding to his peril, both accepted statements of the doctrine; but defendant had full advantage of these varying statements in special written charges given at his request, and the court is thoroughly well satisfied that he suffered no harm from the form of statement adopted by the court in its oral charge to the jury.

The rule is of universal acceptance that a person assailed is not bound to retreat from his own dwelling to avoid killing his assailant, even though a retreat could be safely made. Brinkley v. State, 89 Ala. 34, 8 So. 22, 18 Am.St.Rep. 87. And this doctrine is applied to the curtilage or such space as is customarily occupied by the dwelling house and out buildings appurtenant thereto. Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am.St.Rep. 17; Naugher v. State, 105 Ala. 26, 17 So. 24; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am.St.Rep. 844; State v. Bennett, 128 Iowa, 713, 105 N.W. 324, 5 Ann.Cas. 997, where the cases are collated; State v. Brooks, 79 S.C. 144, 60 S.E. 718, 17 L.R.A. (N.S.) 483, 128 Am.St.Rep. 836, 15 Ann.Cas. 49. And cases may and do arise in which it can be affirmed as matter of law that a given house, structure, or place, is or is not within the curtilage. Cook v. State, 83 Ala. 62, 3 So. 849, 3 Am.St.Rep. 688. But upon the evidence in this case, which has had attentive consideration, the court is unable to say as matter of law that the place where defendant killed deceased was within the curtilage of the former's dwelling house. The trial court therefore committed no error when it refused certain charges (charges 3, 4, 11, and 16, requested by defendant),...