Matthews v. State
| Decision Date | 08 April 1915 |
| Docket Number | 800 |
| Citation | 192 Ala. 1,68 So. 334 |
| Parties | MATTHEWS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.
Boley Matthews, alias, was convicted of murder, and appeals. Affirmed.
W.R Walker, of Athens, for appellant.
William L. Martin, Atty. Gen., for the State.
The defendant was adjudged guilty of murder in the second degree. The victim was Ed Carbon, alias Hickey. The sentence imposed is imprisonment for 25 years. There was evidence tending to make a case of self-defense for defendant.
Able and diligent counsel conducted the defense below and appear on this review. The only possible ground for an argument for error on this record is the court's refusal of the following charge requested for the defendant:
"The court charges the jury that, if the defendant shot under a bona fide belief that his life was in danger, and had, under all the circumstances, a reasonable cause to believe that he was in imminent danger at the moment the shot was fired, then, the defendant cannot be convicted."
This charge is a copy of the instruction numbered 2 approved by the majority of this court in Beasley v. State, 181 Ala. 28, 34, 35, 61 So. 259. The ruling there made needs restatement.
Except in the character of case to be defined, the charge set out above is faulty in two particulars, viz.: (a) For pretermitting in the hypothesis the defendant's freedom from all fault in provoking the difficulty and the negation of his entrance into the fight willingly; and (b) for omitting appropriately expressed inclusion therein of the duty of retreat where that duty, as our law requires, was due to be observed.
The exception mentioned is where the party slain by the defendant made a sudden, entirely unprovoked, murderous attack upon the defendant; the assailant being then armed with a deadly weapon, and in the very act of effecting upon the defendant such murderous purpose. In such case, where the evidence is clear and without conflict or adverse inference, the law concludes that no duty to retreat rests on the defendant--its theory being that, under such circumstances, retreat would not serve the humane purpose the law intends to subserve by its exaction of one, wholly without fault in the premises less immediately and suddenly menaced by an adversary.
In the Beasley Case the majority concluded, as upon the evidence that the evidence was, without conflict or adverse inference to the effect that no act or word on the part of Beasley tended in any degree to bring on or to provoke a difficulty, and that White, the person slain, was, when Beasley fired the fatal shot, in the menacing act of pointing his already "cocked" rifle at Beasley. Under these circumstances, the proof being clear that Beasley was free from all fault in provoking the difficulty, and thus suddenly confronted with such murderous menace by White, it was ruled by the majority of the court that charge numbered 2 was not objectionable in that case; and...
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