McGhee v. State
| Decision Date | 28 May 1912 |
| Citation | 59 So. 573,178 Ala. 4 |
| Parties | MCGHEE v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 29, 1912.
Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.
Phil McGhee was convicted of murder in the first degree, and he appeals. Affirmed.
The objections to the evidence sufficiently appear from the opinion of the court. The exceptions to the oral charge appear in the record as follows:
The following charges were refused the defendant:
(3) "The court charges the jury that the burden is not on the defendant to establish self-defense by a preponderance of evidence; but, if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, then they must find him not guilty."
(2) "The court charges the jury that it is a well-settled rule of law that if there be two reasonable constructions which can be given to facts proven, one favorable and the other unfavorable to the defendant, it is the duty of the jury to give that which is favorable rather than that which is unfavorable to such defendant."
(5) "I charge you, gentlemen of the jury, that one of the elements of self-defense is that the defendant must be reasonably free from fault in bringing on the difficulty, and I charge you that the burden of proof is not on the defendant to prove this element."
(18) "I charge you that, if you believe the evidence in this case, you must find the defendant not guilty."
(17) "I charge you that you are to try this case according to the law and the evidence, and not according to your opinion as to whether public peace and good order would be promoted by a conviction of the defendant."
(19) "I charge you that, if the circumstance attending the firing of the first shot was such as to impress the defendant with a reasonable belief that at the time of firing said shot it was necessary to do so to prevent death or great bodily harm to himself, the defendant should be acquitted, provided the evidence showed that he was free from fault in bringing on the difficulty."
(20) "I charge you that it is better, far better, that the guilty go unpunished than that the innocent or those whose guilt is not shown beyond a reasonable doubt should be punished."
(21) "The court charges you that if the defendant at the time of the killing entertained a reasonable apprehension of great personal violence, involving imminent danger to life or limb and could not retreat in safety, or without putting himself at a disadvantage, then the killing would not be wrongful and it would be the duty of the jury to acquit, unless they further believe from the evidence that the defendant was at fault in bringing on the difficulty."
(A) "The court charges you that if you believe from the evidence in this case that the defendant was free from fault in bringing on the difficulty, and fired the fatal shot under an honest belief that it was necessary to fire such shot in order to save his own life, and, further, that such first shot was the shot that killed the deceased, then you must find the defendant not guilty, notwithstanding that other shots were fired by the defendant."
(B) "I charge you that if you believe from the evidence in this case, that the defendant is free from fault in bringing on the difficulty, that at the time he fired the first shot, as shown by the evidence, he was under the bona fide belief that his life was in danger, and that he had under all the circumstances reasonable cause to believe that he was in imminent danger at the time such shot was fired, and you further believe from the evidence that the first shot fired was the shot that killed the deceased, then you must find the defendant not guilty, notwithstanding you may believe that the defendant fired other shots at the deceased afterwards."
(C) "If you believe from the evidence that the first shot fired was the one that hit the deceased, and, further, that said shot killed the deceased, then you cannot find the defendant guilty because he fired other shots than the first, after the first was fired, provided you further believe from the evidence that the defendant was free from fault in bringing on the difficulty."
(F) "I charge you that where the defendant relies upon the plea of self-defense there is no greater burden upon him to establish that plea by affirmative evidence than any other defense; but if all the evidence raises in the minds of the jury a reasonable doubt as to whether he acted in self-defense, then he should be acquitted."
(G) "I charge you that if you believe from the evidence in this case that at the time of the killing the defendant was in the crib, and the only means of getting out of the crib was through the door, and that the deceased stood at the door armed, then the defendant was under no duty to remain in the crib indefinitely, but had the right to go out of the crib by the door, and to take the life of the deceased, if necessary, in order to get out, provided you further believe that the defendant was free from fault in bringing on the difficulty."
C. M. Sherrod, of Courtland, for appellant.
R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
There is no doubt but what the witness Dr. Rigney could give an opinion as to the mental condition of the defendant, if he knew him or had made such an examination of him as to enable him to advance an opinion; but when the witness showed that he had not examined the defendant, and only had a slight or casual acquaintance with him, there was no error in sustaining the state's objection to a question calling for an opinion based on a casual acquaintance or observation. Moreover, after the witness had detailed the circumstances as to his acquaintance and connection with the defendant, the court asked for his opinion as to defendant's sanity, and the witness declined to give a positive opinion, thus indicating that he could not give an opinion on the subject.
There was no error in permitting the state's witnesses to show that the deceased did not own a pistol, did not have one on the night of the killing, and that none was found on his person after he was killed. This may have been negative evidence, but it was relevant and tended to contradict the defendant in the statement that the deceased had a pistol and tried to shoot him with it when the shooting occurred at the crib.
It has been repeatedly held that, among the other essential ingredients of self-defense, the defendant must be absolutely and entirely free from fault in provoking the difficulty, and not merely reasonably so. Griffin v. State, 165 Ala 29, 50 So. 962; Crawford v. State, 112 Ala. 1, 21 So. 214, and many other cases. It is true that, after the defendant shows the other elements of self-defense, the burden is not upon him to show that he was free from fault, and is upon the state to show that he was at fault. Wilkins v. State, 98 Ala. 1, 13 So. 312. While the exception, however, to the oral charge would indicate that the court put the burden upon defendant, by making it his duty to show freedom from fault, the charge does not in fact misplace the burden, as it appears therefrom that the court explicitly instructed the jury that the state must prove beyond a reasonable doubt that the defendant either provoked the difficulty or entered willingly into the...
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