McCutcheon v. State

• Decision Date: 30 May 1912
• Citation: 59 So. 714,5 Ala.App. 96
• Parties: MCCUTCHEON v. STATE.
• Court: Alabama Court of Appeals

59 So. 714

5 Ala.App. 96

MCCUTCHEON v. STATE.

Court of Appeals of Alabama

May 30, 1912

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Thomas McCutcheon was convicted of manslaughter, and he appeals. Reversed and remanded.

The following are the charges mentioned in the opinion:

(M) "It is not necessary, under the evidence in this case that the defendant should have been in actual danger of death or great bodily harm at the time he killed Hood, if you find that he did kill him, or that retreat would have really increased his peril, in order for him to be justified in throwing the rock and killing Hood. He had the right to act on the appearances of things at the time taken in the light of all the evidence, and he had the right to interpret the conduct of Hood in the light of any threat that the evidence proved Hood to have made against the defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had the right to strike or throw the rock at Hood in his own defense, although as a matter of fact he was not in actual danger, and retreat would not have endangered his personal safety, and if the jury believed that the defendant acted under such conditions and circumstances as above set forth the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and, if not shown, the jury should acquit."

(F) "You cannot find the defendant guilty, unless you believe him guilty beyond all reasonable supposition."

(L) "The court charges the jury that the evidence in this case is partly circumstantial, and his innocence must be presumed by the jury until his guilt is established by evidence, in all the material aspects in the case, beyond a reasonable doubt and to a moral certainty."

C. L Price, Callahan & Harris, and Tidwell & Sample, all of Decatur, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM J.

The trial of the defendant on an indictment charging murder resulted in conviction of manslaughter. No question is presented upon this appeal, except the ruling of the trial court in refusing a number of written charges requested by the defendant. Among the number refused is charge designated in the bill of exceptions as charge M. This charge, as it appears in the record, has been twice approved by the Supreme Court (Bluitt v. State, 161 Ala. 14, 49 So. 854; Bluitt v....