Mosley v. State, 2 Div. 378

CourtAlabama Court of Appeals
Writing for the CourtRICE, J.
Citation22 Ala.App. 95,112 So. 811
PartiesMOSLEY v. STATE.
Docket Number2 Div. 378
Decision Date10 May 1927

112 So. 811

22 Ala.App. 95

MOSLEY
v.
STATE.

2 Div. 378

Court of Appeals of Alabama

May 10, 1927


Appeal from Circuit Court, Choctaw County; T.J. Bedsole, Judge.

Ulmer Mosley was convicted of murder in the second degree, and he appeals. Reversed and remanded. [112 So. 812]

Gray & Dansby, of Butler, for appellant.

Charlie C. McCall, Atty. Gen., and W.M. Rayburn, Asst. Atty. Gen., for the State.

RICE, J.

Appellant was convicted of the offense of murder in the second degree and given a sentence to serve imprisonment in the penitentiary for a term of ten years. It appears that appellant and deceased, Harry Rapp, who was the husband of appellant's [22 Ala.App. 97] only sister, both made their homes, at the time of the killing of deceased by appellant, with Joab Mosley, the father of appellant, and father-in-law of deceased. The killing occurred in the home of Joab Mosley.

The evidence, on the part of the state, as to the actual circumstances of the killing, which was done by appellant shooting deceased in the head with a shotgun, was circumstantial. Appellant, on his own behalf, was his only witness, as to the facts of the shooting. He admitted the act was done by him, but claimed it was done in self-defense.

Where a fight occurs between parties, in a place which is the home of both or all of them, resulting in the injury or death of any of them, and a prosecution, met by a plea of self-defense, ensues, the element of the duty to retreat is eliminated. In other words, whereas, ordinarily, to establish a plea of self-defense it would be necessary for it to appear (1) that defendant was free from fault in provoking the difficulty, (2) that defendant was in imminent danger of suffering grievous bodily harm, and (3) that there was open to defendant no reasonably apparent mode of escape, in the case we have postulated, which is the case here, a successful establishment of defendant's plea of self-defense requires only that it be shown that the first two of the elements of self-defense as set out should exist. Corpus Juris, vol. 30, p. 72,§ 245; Watts v. State, 177 Ala. 24, 59 So. 270. The portions of the oral charge of the court to which exceptions were reserved are not in accord with what we have just said, and their giving constituted reversible error.

Written charge 4 refused to appellant was faulty for failing to hypothesize freedom from fault on the part of defendant in bringing on the difficulty.

Written refused charge...

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7 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Creel v. State, 23 Ala. App. 241, 124 So. 507; Traylor v. State, 20 Ala. App. 262, 101 So. 532. The remark of the court when deny......
  • Williams v. State, 6 Div. 48
    • United States
    • Alabama Court of Criminal Appeals
    • July 29, 1980
    ...no duty to retreat. Hutchinson v. State, 170 Ala. 29, 54 So. 119 (1910); Watts v. State, 177 Ala. 24, 59 So. 270 (1912); Mosley v. State, 22 Ala.App. 95, 112 So. 811 (1927); Terry v. State, 21 Ala.App. 100, 105 So. 386 (1925); Resmando v. State, 24 Ala.App. 566, 138 So. 425 In Wilkinson, 36......
  • Usrey v. State, 6 Div. 556
    • United States
    • Alabama Court of Criminal Appeals
    • December 17, 1974
    ...to be.' The law of self-defense to be shown by the evidence has three essential elements, as this court pointed out in Mosely v. State, 22 Ala.App. 95, 112 So. 811. They '(1) That defendant was free from fault in provoking the difficulty; [54 Ala.App. 451] '(2) That defendant was in imminen......
  • Wilkinson v. State, 6 Div. 904
    • United States
    • Alabama Court of Criminal Appeals
    • May 22, 1979
    ...I say, is embraced of course within the plea of self-defense." The elements of self-defense as stated by this court in Mosley v. State, 22 Ala.App. 95, 97, 112 So. 811, 812, (1927) "(1) (T)hat defendant was free from fault in provoking the difficulty, "(2) (T)hat defendant was in imminent d......
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7 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Creel v. State, 23 Ala. App. 241, 124 So. 507; Traylor v. State, 20 Ala. App. 262, 101 So. 532. The remark of the court when deny......
  • Williams v. State, 6 Div. 48
    • United States
    • Alabama Court of Criminal Appeals
    • July 29, 1980
    ...no duty to retreat. Hutchinson v. State, 170 Ala. 29, 54 So. 119 (1910); Watts v. State, 177 Ala. 24, 59 So. 270 (1912); Mosley v. State, 22 Ala.App. 95, 112 So. 811 (1927); Terry v. State, 21 Ala.App. 100, 105 So. 386 (1925); Resmando v. State, 24 Ala.App. 566, 138 So. 425 In Wilkinson, 36......
  • Usrey v. State, 6 Div. 556
    • United States
    • Alabama Court of Criminal Appeals
    • December 17, 1974
    ...to be.' The law of self-defense to be shown by the evidence has three essential elements, as this court pointed out in Mosely v. State, 22 Ala.App. 95, 112 So. 811. They '(1) That defendant was free from fault in provoking the difficulty; [54 Ala.App. 451] '(2) That defendant was in imminen......
  • Wilkinson v. State, 6 Div. 904
    • United States
    • Alabama Court of Criminal Appeals
    • May 22, 1979
    ...I say, is embraced of course within the plea of self-defense." The elements of self-defense as stated by this court in Mosley v. State, 22 Ala.App. 95, 97, 112 So. 811, 812, (1927) "(1) (T)hat defendant was free from fault in provoking the difficulty, "(2) (T)hat defendant was in imminent d......
  • Request a trial to view additional results

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