Montgomery v. State

• Decision Date: 18 May 1909
• Citation: 49 So. 902,160 Ala. 7
• Parties: MONTGOMERY v. STATE.
• Court: Alabama Supreme Court

49 So. 902

160 Ala. 7

MONTGOMERY v. STATE.

Supreme Court of Alabama

May 18, 1909

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

Wess Montgomery was convicted of murder, and he appeals. Reversed and remanded.

Denson J., dissenting.

The facts are sufficiently stated in the opinion of the court. In his oral charge to the jury the court said, among other things: "If the jury find from the evidence that the defendant was in the cook room of his son, Hubert Montgomery when Dave Pruitt, the deceased, appeared at the window of said cook room and poked his gun through the window, if he did poke it through the window, and the defendant went from the cook room into the big or main room, and out the shed room on the north side of the house, and out into the yard 10 or 12 feet away, to the north of the building and there came upon Dave Pruitt, the deceased, unexpectedly, and even if deceased raised his gun to shoot defendant, and defendant shot and killed Dave Pruitt, the defendant could not set up the plea of self-defense because the law says the defendant had no right to leave the place of safety he was at in the house of his son, Hubert Montgomery."

Further charging the jury orally, the court said: "Gentlemen of the jury, if you find from the evidence that the defendant left the residence of Hubert Montgomery after the deceased appeared with his gun at the window, if he did so appear, and that defendant came in contact with deceased outside of the house and killed him, then I charge you the defendant cannot invoke the doctrine of self-defense. If you believe from the evidence that the defendant was in the house of Hubert Montgomery, and that Dave Pruitt went out of the house and called for his gun, and threatened to kill the defendant then it was the defendant's duty to remain in a place of safety; and if the defendant did leave the house and came in contact with Dave Pruitt, who was attempting to shoot him with a gun, then I charge you that the defendant would not be without fault, as it was his duty to remain in a place of safety. I further charge you that, while the defendant was in the house of his son, the said house was his castle, and he had a right to defend himself if assaulted therein; but I charge you he had no right to leave his castle, and if he did so, and came upon Dave Pruitt, who was attempting to shoot him with a gun, then I charge you that the defendant would not be without fault, for the reason that he had no right to leave his castle. I further charge you that if you find from the evidence that the defendant was in the residence of his son, and the deceased appeared at the window with his gun manifesting an intention of shooting into the house, and that the defendant left the house and went into the back yard and came upon the deceased with a gun in his hand, indicating by his manner that he would shoot the defendant, and the defendant fired and killed the deceased, then I charge you that the defendant cannot invoke the doctrine of self-defense, for the reason that the law required him to remain in the house or castle."

The bill of exceptions recites that in connection with this charge, and after exceptions had been reserved thereto, the court stated to the jury that if the defendant, while in his son's house, was in a place of safety, and if he knew it to be a place of safety, it was his duty to remain therein; and if under such circumstances he left the house, and went into the back yard, and came upon Pruitt in the act of shooting him, then, even though it became necessary for him to shoot Pruitt to save his own life, he cannot invoke the doctrine of self-defense, for it was his duty to remain in the house.

Charge A2, given at the request of the state, was as follows: "If you believe from the evidence in this case beyond a reasonable doubt that before the shooting defendant was in the north room of Hubert Montgomery's house, and that such place was safe, and defendant knew it was a safe place, and that he left this place and went into the yard, and there it became necessary to take the life of the deceased to save his own life, then I charge you he cannot set up the doctrine of self-defense."

The following charges were refused to the defendant:

(1) "I charge you that, before you can convict the defendant, you must be satisfied clearly, fully, and conclusively, and to a moral certainty, of defendant's guilt, and if this measure of satisfaction is lacking you should acquit him."

(3) "If defendant left the house and was leaving the place, and Dave Pruitt attempted to shoot him, then I charge you that the defendant still had the right to defend himself, if he was without fault."

Charge 4, being the general affirmative charge.

(5) "Gentlemen of the jury, the evidence in this case does not show that Hubert Montgomery went into the north room before or after the firing of the pistol at the time Dave Pruitt was killed."

(6) "The law is that a man may leave his house to avoid a difficulty, and does not leave it for the purpose of encountering danger at the hands of his adversary."

(7) "I charge you that there is no evidence in this case that Wess Montgomery left the house of his son to encounter Dave Pruitt on the north side of the house."

(8) "If the jury believe from the evidence in this case that the deceased had but a few moments before the shooting threatened to kill the defendant, and went out to get his gun a few feet away, and returned to where defendant was and poked his gun into the window, where defendant had just before that been standing, and in a well-lighted room, and defendant left said room and went in a direction opposite to where deceased was last seen, and you believe from the evidence that defendant drew his pistol as he left the house, and did leave the house with his own pistol, and suddenly and unexpectedly came upon the deceased, and saw deceased present a gun at him, and he believed from his conduct that deceased intended to shoot him, and defendant had no way of escape without greatly imperiling his life, the law says he had a right to shoot and kill deceased, and your verdict should be not guilty."

(9) "I charge you that any man may strike in self-defense when attacked by an enemy, and if the jury believe from the evidence that the defendant was free from fault in bringing on the difficulty in this case, and was on the premises of his son, and had a right to be there, and was doing nothing more than walking away from the direction that deceased was last seen, and suddenly came upon deceased, and deceased was drawing his gun on defendant in a shooting attitude, then I charge you the defendant had a right to shoot and kill deceased, if from all the surroundings and acts of deceased would have led a reasonable man to believe his life was in imminent peril and there was no open and reasonable way open for the escape of the defendant."

(10) "If the defendant was free from fault in bringing on the difficulty, and there was no reasonable mode for his escape when he came upon deceased, without great danger of bodily harm, and defendant had a right by invitation or permission to be where he was, and a reasonable man would have believed from the act of the deceased that his life was in peril, then the defendant had a right to shoot and kill deceased, if necessary, and the jury should find him not guilty."

(11) "The defendant is not required to remain in the house, if in his reasonable judgment he would be safer in going out to some other part of the premises, and if, in attempting to seek such refuge, defendant comes upon the deceased unexpectedly, he is not prevented from setting up the plea of self-defense; and if the jury find from the evidence that the defendant is seeking a safer place than the dwelling, and was not seeking a meeting of the deceased, and was not in fault in bringing on the difficulty, then the jury should acquit the defendant."

(12) "If the evidence convinces the jury that deceased was a man of bad character, that he was bloodthirsty, turbulent, and determined, especially when drinking, and the defendant knew of this character, and the jury further find that at the time of the killing deceased was drunk, or drinking heavily, then I charge you that the law does not require one who has knowledge of such character to wait so long to strike in self-defense as he would be required to do if deceased did not have such character."

(13) "If the jury believe from the evidence that Pruitt called for his gun and threatened to kill defendant, that he then appeared at the window of the room in which defendant was, with his gun pointing into the room in a manner indicating an intention of firing into the room, that defendant left the room and went out of the house in an opposite direction from the defendant, that Pruitt went around the house and met defendant, and raised his gun in a manner indicating an intention of shooting defendant, and creating in defendant's mind a reasonable belief that it was necessary to shoot Pruitt to save his own life, and that the defendant was without fault, then they should find the defendant not guilty, if there appeared at the time no safe way of retreat open for defendant."

(14) "Where an assault is made which is manifestly felonious in its purpose and forcible in its nature, as in murder, the party attacked is under no obligation to retreat; but he may in such case, if necessary, stand his ground and kill his adversary."

(15) "The law has long been settled that a guest in a dwelling house is entitled to the protection that the law affords the owner or more permanent occupant, and he may repel trespassers in and upon the house, and repel assaults actual or menaced, as if he were under his own roof and within his...