McClusky v. State

• Decision Date: 09 June 1923
• Docket Number: 8 Div. 528.
• Citation: 96 So. 925,209 Ala. 611
• Parties: MCCLUSKY v. STATE.
• Court: Alabama Supreme Court

96 So. 925

209 Ala. 611

MCCLUSKY v. STATE.

8 Div. 528.

Supreme Court of Alabama

June 9, 1923

Appeal from Circuit Court, Lawrence County; Osceola Kyle, Judge.

Ralph McClusky was convicted of murder in the first degree, and appeals. Affirmed.

Callahan & Harris, of Decatur, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of murder in the first degree, and his punishment fixed at imprisonment in the penitentiary for life.

The several objections and exceptions reserved on the introduction of evidence are without merit. Defendant gave his version of the fatal difficulty, and stated, without objection, that the evening before the killing he left home and went west on the pike; that he had some words with deceased, and drove on down the pike past the house of deceased for some distance, and remained 15 of 20 minutes that, returning by way of the pike, "just before he got to the deceased's house he saw the deceased [come] on down into the pike [with] *** a pistol in his hand, and [deceased] said: 'Come on up here and we will fix you."' The state moved to exclude the answer. No exception was then reserved to this "motion to exclude." The court later said, "I will sustain the objection to the question"; the only immediate question being by the court and defendant's counsel. Exception being reserved, the court made clear the purport of the ruling by saying:

"Now, the statement of this witness, gentlemen, that Gernie Clark said the evening before, 'Come on up here and we will fix you,' is not evidence in this case, and must not be considered by you in reaching a verdict."

The defendant's counsel continued the examination of the witness as to the character and nature of the difficulty between defendant and deceased on the evening before the fatal encounter, and he was permitted to show that it was a felonious assault in which he [defendant] was struck with a pistol. Evans v. State (2 Div. 810) 96 So. 923; Watts v. State, 177 Ala. 24, 59 So. 270; Beasley v. State, 181 Ala. 28, 32, 61 So. 259. There was no error in the foregoing ruling.

There was no error in not permitting defendant to answer the question:

"Did any third party take them off of you and Roy and stop them-(objection by the state)-beating you up and hurting you?"

Such details of the former difficulty are not permissible.

The court gave charges 2 and 3 at the request of the state. In this there was no error. Defendant could not claim the right to shoot in self-defense if, by word or act, he was at fault in bringing on the difficulty, and then retired from the situation, not in good faith to avoid the difficulty, but to arm himself with a gun with which to commit the homicide. Chaney v. State, 178 Ala. 44, 59 So. 604; Bluitt v. State, 161 Ala. 14, 49 So. 854; Tyus v. State, 10 Ala. App. 10, 64 So. 516. However, the law of self-defense that had application, from the beginning of the difficulty to the homicide, was given the jury by the court. The charge did not contravene any rule of self-defense that should be applied under the evidence, nor did it withdraw the consideration of any proper issue of fact from the jury. All the evidence showed that the defendant went unbidden from a place of security at or in his home to or in the public road along which deceased was driving, and that the defendant there addressed a provoking remark to the deceased. Thereafter, to have availed himself of the rule of self-defense, defendant must have retired or retreated from the situation or difficulty with the bona fide intent of not further provoking or pursuing the same. No error was committed in the giving or charges 2 and 3 at the request of the state.

When the oral charge as a whole is considered, no reversible error was committed in the several instructions to which exceptions were taken. The court stated the rule of self-defense clearly. All the law of the case, in respect to the law of self-defense, could not be stated at one time. It was sufficiently stated by the learned circuit judge presiding at the trial.

It is insisted that the court committed error in limiting the purpose for the admissibility of evidence of the former difficulty, to which we have adverted. The court said that the evidence was permitted to go to the jury that they might consider and determine the character of the assault by the...