McBryde v. State

• Decision Date: 03 July 1908
• Citation: 47 So. 302,156 Ala. 44
• Parties: MCBRYDE v. STATE.
• Court: Alabama Supreme Court

47 So. 302

156 Ala. 44

MCBRYDE v. STATE.

Supreme Court of Alabama

July 3, 1908

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Joel McBryde was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Tyson C.J., and Denson, J., dissenting in part.

It was shown on the trial that the juror Blackwell was named "J. P. Blackwell," and not "J. C Blackwell," as his name appeared in the jury box; but it was ascertained that there was no other person named "Blackwell" in the beat in which he lived. So the court declared him competent and put him upon the defendant who objected to the juror on the ground that the name "J. P. Blackwell" was not on the list of jurors served upon him.

The witness Isbell stated that he knew the defendant and deceased, Joe Sims, and that after Sims was buried he and several others were at the place pointed out to him by witness Crosswhite as the place where Sims was shot, and that witness and others looked around to ascertain whether or not there were any rocks about the place; and witness stated that Michael showed him the place or hole where a rock was said to have been picked up by Sims, and which Michael said was thrown by Sims. Isbell was allowed to testify that the hole showed him looked like a mule track. The solicitor then asked witness whether Lee Michael had brought a rock to the place a rock which he claimed was the rock picked up by Sims at the time of the shooting, and witness stated that Lee Michael had brought a rock which he said Sims threw.

In his oral charge to the jury the court said:

"The defendant contends that he acted in self-defense in killing Joe Sims. The state contends he did not. There are three essential elements of self-defense, and they are, first, defendant must be free from all fault from provoking or bringing on the difficulty. He must not say or do anything to provoke or bring on the difficulty, nor be unmindful of the consequences in this respect of any wrongful word or act; and there must be no convenient mode of retreat or by declining the combat. If you are satisfied that defendant was free from all fault in provoking or bringing on the difficulty, and you are further satisfied that there was a present, impending peril to life or danger of great bodily harm, either real or so apparent as to create the bona fide necessity to take life, you must go further, and find that there was no convenient or reasonable mode of escape by retreat or by declining the combat, before the defendant can be acquitted."

The following charges were refused to the defendant:

"(1) The burden is on the state to prove that McBryde provoked the difficulty or was the aggressor.

"(2) If the immediate cause of the difficulty was the question addressed by the defendant to deceased concerning himself as a witness in some pending suit, and such remark or question by defendant was spoken in temperate tones and without offensive manner, the deceased should have spoken and acted likewise, if at all; and if without adequate provocation he chose to make a reply in offensive tone and manner, and became from that moment the aggressor, and placed his hand in his pocket as though to draw a weapon, and then struck defendant with a rock, and defendant fired while in a bent position caused by the effort to escape the blow, and the nature of the assault by deceased was such as to create in the mind of a reasonable man the belief that deceased intended to kill or inflict great bodily harm on defendant, and at the time the shot was fired defendant honestly entertained the belief that his life or limb was in danger from deceased and that to retreat would increase his peril, and the jury so find the fact from all the evidence, then they should acquit the defendant.

"(3) If the immediate cause of the difficulty was the question addressed by defendant to deceased concerning himself as a witness in some pending suit, and such remark or question by defendant was spoken in a temperate tone and without offensive manner, the deceased should have spoken and acted likewise, if at all; and if without adequate provocation he chose to make a reply in offensive tone and manner, and became from that moment the aggressor, and defendant was provoked and excited into heated frame of mind, and was struck by deceased with a rock, and then without premeditation or malice, but in hot blood, as upon a sudden quarrel, he fired the fatal shot, he would not be guilty of murder in either degree, but of manslaughter in the first degree; and if the jury so find the facts after a careful consideration of all the evidence they should acquit the defendant of all higher degree of homicide.

"(4) If the evidence shows defendant spoke to deceased about a matter of difference between them, although it was not a perfectly friendly act, and showed warmth and dissatisfaction with the deceased, yet if the word spoken by defendant would not have provoked a man of ordinary self-control to combat, then it cannot be said that from the mere speaking of such words that the defendant brought on the difficulty. And if you find that he did not bring on the difficulty, and did not encourage and enter willingly into the combat, then you may consider whether or not he acted in self-defense; and if you find from the evidence that deceased had, at the very minute of firing or just a short interval before the firing by defendant, thrown a rock at defendant of such size as to be capable of producing great bodily harm or death, and then put his hand in his pocket and advanced, and defendant fired under the honest belief that it was necessary to fire to save himself from great bodily harm or death and that to retreat would increase his danger, then he would be acting in self-defense, and you should acquit him.

"(5) Gentlemen of the jury, the law in the case of homicide is that when the killing in any sudden encounter or affray is caused by the assailant by the use of a deadly weapon, which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder in the first degree. I charge you that said law or statute has no application when the party slain was the assailant.

"(6) If the jury believe from the evidence that deceased was a strong man, and was in a fit of violent temper, and had thrown a rock at defendant, and had struck him, and that the rock was large enough to have produced death or great bodily harm, and defendant did not shoot until assailed by deceased with the rock, and was reasonably free from fault, and entertained the belief at the time that deceased would strike and wound him mortally if he did not repel the assault, and under such belief fired the shot, then he would not be guilty of murder, and, if guilty at all, he cannot be guilty of any greater offense than manslaughter in the first degree.

"(7) Gentlemen, I charge you, if any individual juror is not convinced of defendant's guilt beyond all reasonable doubt and to a moral certainty, the jury cannot convict. Gentlemen, I charge you that each juror is required to be satisfied of the guilt of defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must separately and segregately be so satisfied to support a conviction. If the jury should be satisfied from the evidence that McBryde brought on the difficulty, yet if they further believe from the evidence that afterwards he in good faith attempted to withdraw from the conflict, by retreating or otherwise, then the right of Sims to use violence against him ceased; and if Sims did not do this from attempting to use violence towards defendant, then defendant's right to defend himself revived; and if he then found himself in apparent danger of sustaining great bodily harm at the hands of deceased, he had the same right to defend himself that he would have had if he had not been originally in fault.

"(8) It is not unlawful for one man to speak to another, and if the subject referred to by the speaker who opens the conversation is a subject in the ordinary course of affairs, and the mentioning of it is not inherently insulting to the other, and if the speaker manifests no purpose by voice or manner to induce the other to combat, it cannot be said as a matter of law that the one who began such a conversation brought the difficulty on, if a combat does ensue. The law requires that in opening a conversation, even on a subject disagreeable to the other party, that the one who first refers to the subject shall do so in voice, words, and manner reasonably polite and free from offensiveness; and it also requires that the person so addressed, if he makes reply, shall observe the same rule of conduct and exercise such self-control as a man of ordinary self-control would do; and if he fails in this, and manifests a willingness to enter into combat, and they fight in the heat of blood with deadly weapons, and the person so addressed is slain, it would amount to no more than

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