Mitchell v. State

• Decision Date: 21 May 1902
• Parties: MITCHELL v. STATE.
• Court: Alabama Supreme Court

32 So. 132

133 Ala. 65

MITCHELL v. STATE.

Supreme Court of Alabama

May 21, 1902

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

D. P Mitchell was convicted of manslaughter in the first degree and he appeals. Affirmed.

The appellant in this case, D. P. Mitchell, was indicted jointly with his two sons, for the murder of one Dave Thompson by shooting him with a gun, was tried separately and convicted of manslaughter in the first degree and sentenced to the penitentiary for five years.

On the trial the evidence for the state tended to show that as the defendant, in company with his two sons, was passing by the house of the deceased, Dave Thompson, said Thompson ran across the road towards his house and as he got near his porch the defendant fired upon and killed him. That the defendant was near the gate opening into Thompson's yard at the time the fatal shot was fired. There was some evidence on the part of the state tending to show that there was a conspiracy between the defendant and his two sons for the killing of such Thompson. That Thompson had a few days prior to his killing snapped a gun at one of the sons of the defendant.

The evidence for the defendant tended to show that a short time before the killing, the two sons of the defendant who were jointly indicted with him, started towards their home by Thompson's house; that when they got to Thompson's house they saw his son carrying a gun to him, and that thereupon one of the sons turned back and went to where the defendant was; that thereupon the defendant went with him to Thompson's house carrying his gun; that as Thompson saw the defendant coming, he ran across the road to his house calling to his daughter to bring him his gun quickly; that the defendant saw Thompson's daughter carrying the gun to him, and that when Thompson was within 10 or 15 steps from his daughter, the defendant fired upon him. There was evidence introduced on the part of the defendant showing that Thompson had made threats against the defendant and his sons and had stated that he was going to kill him. The daughter and his two sons testified as witnesses for the state. There was evidence introduced as to the character of the deceased. This is sufficiently shown in the opinion. There was evidence tending to show that after the homicide the defendant fled to Marion county.

Upon the introduction of all the evidence, the defendant requested the court to give several written charges, and separately excepted to the court's refusal to give each of said charges. Charges 1 to 7 inclusive relate to murder and it is therefore, unnecessary to set them out in detail. The other charges, to the refusal to give each of which the defendant separately excepted, were the following: "(8) The court charges the jury that flight of a defendant although a circumstance to be considered by the jury in connection with all the other evidence, is evidence of a weak and inconclusive character. It may not be evidence of guilt at all if it be shown that there was any other reason for the flight than that of a sense of guilt. Flight may proceed from an unwillingness to stand a public prosecution or from fear of the result; from an inability to explain false appearances, or from the advice of friends to avoid public excitement, and if it proceeded from any one or more of these reasons, then flight is not evidence of guilt at all." "(10) The court charges the jury that in considering the testimony of Maggie, Francis and David Thompson, they must weigh it in the light of the fact that they are the children of the deceased, and of the material interest they feel in the case." "(12) The court charges the jury that there is no evidence that the killing in this case was in pursuance of any conspiracy. (13) The court charges the jury that there is no evidence in this case of any conspiracy between D. P. Mitchell, Lon Mitchell and Lint Mitchell to take the life of the deceased. (14) The court charges the jury that a defendant is warranted in acting more promptly in his own defense when assailed by a person who he knows has made threats of taking his life than when assailed by one who has made no such threats. (14 1/2) The court charges the jury that the law is that a defendant is warranted in acting more promptly in his own defense when assailed by a man of known violent character than when assailed by a person of peaceable and law abiding character. (15) The court charges the jury that they have a right to look to the character of the deceased man and evidence tending to show that the deceased was a man of violent character is proper for their consideration in connection with all the evidence in determining who was the aggressor in the difficulty, and in determining what impression the conduct of the deceased at the time of the killing made upon the mind of the defendant. (16) The court charges the jury that if they believe from all the evidence that there were appearances of danger surrounding defendant at the time of the difficulty, then in determining whether such appearances were sufficient to produce in the minds of the defendant a reasonable belief that his life was in danger, the jury should determine the sufficiency of such appearances of danger from the standpoint then occupied by the defendant as he was then surrounded, and if after thus considering the evidence the jury have a reasonable doubt as to whether such appearances were sufficient to produce such a reasonable belief in the mind of the defendant, and if defendant did not provoke the difficulty and there was no other reasonable means of escape and if under these circumstances defendant killed the deceased then this was self-defense and the jury should acquit the defendant. (17) While the slayer who is free from fault in bringing on the difficulty must use all possible means of retreat to avoid the fatal act, yet where it is reasonably apparent that he is about to be assailed with a deadly weapon by the deceased in such a manner as apparently to subject him to danger of losing his life, if he is not in a position to avoid it reasonably, the law does not require him to wait until his adversary gains a position equal to his own, and is upon equal terms with him in all respects, but under such...