Murphy v. State

• Decision Date: 04 April 1916
• Docket Number: 8 Div. 395
• Citation: Murphy v. State, 14 Ala.App. 78, 71 So. 967 (Ala. App. 1916)
• Parties: MURPHY v. STATE.
• Court: Alabama Court of Appeals

71 So. 967

14 Ala.App. 78

MURPHY v. STATE.

8 Div. 395

Court of Appeals of Alabama

April 4, 1916

Rehearing Denied May 30, 1916

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Jim Murphy was convicted of murder in the second degree under an indictment charging first degree murder, and appeals. Affirmed.

The charges requested for the state and given are as follows:

(4) If the wounds inflicted by defendant on Skidmore, and that by reasons of said wounds, and as a result thereof, the deceased was caused to have some other disease from which he died, then defendant would be responsible for inflicting said wounds unless he acted in self-defense in inflicting them.

(5) If deceased died from heart trouble which was brought about by reason of the infliction of the wounds, if it was brought about thus, then defendant is responsible for the death of deceased; and, if defendant thus caused the death of Skidmore, and did not act in self-defense in so doing, then defendant is not guiltless.

(7) If, from the evidence in this case, you find beyond a reasonable doubt that defendant, in this county, before the finding of this indictment in this case, shot deceased with a pistol, and that this shooting was done wrongfully, without justification, and was done maliciously, and you further find that said wounds so inflicted contributed to the death of deceased, that is, by bringing about the condition that caused deceased to die, then defendant would be guilty of murder of deceased; and in determining whether the shooting was maliciously done I charge you that malice on the part of defendant towards the deceased may be inferred from the shooting of the pistol, unless the evidence which shows the shooting with a pistol shows it was used without malice.

The other facts sufficiently appear.

E.W. Godbey and Wert & Lynne, all of Decatur for appellant.

W.L Martin, Atty. Gen., J.P. Mudd, Asst. Atty. Gen., and O. Kyle of Decatur, for the State.

PER CURIAM.

Appellant was indicted for murder in the first degree, was convicted of murder in the second degree and given a sentence of ten years. The evidence for the state tended to show that the deceased, having taken up and put in his lot some cattle belonging to the defendant that were trespassing upon the premises of deceased in a stock-law district and doing damage to his crops, notified defendant over the phone, who promised that he would that afternoon go over to deceased's, pay the amount of damage that his (defendant's) cattle had done, and take them home; that upon the arrival of defendant that afternoon at the house of deceased he, accompanied by deceased and deceased's son, looked over the field where the cattle had trespassed for the purpose of estimating the damages, and then returned to the lot of deceased where the cattle were impounded, when it was discovered that a part of the cattle that had so trespassed did not belong to defendant; that thereupon a dispute or altercation arose between defendant and deceased as to the amount of damage the former should pay the latter for the injury done by his cattle that, in common with the others, had done the trespassing; that, no adjustment having been reached, the defendant finally said in an angry tone that he would let the law settle that matter later, but would now take his cattle home, and was proceeding to drive the cattle toward the lot gate, which he had ordered one of his servants to open, when the deceased and his son hurried to the gate, closed it, and stood with their backs aganist it, whereupon defendant immediately pulled his pistol and fired at deceased, the bullet striking deceased just below the knee, shattering the leg bone, from the effects of which the evidence tended to show the deceased died in 42 days thereafter.

The evidence for the defendant tended to make out a case of self-defense, and to show, among other things, that defendant did not shoot deceased until deceased was attempting to shoot defendant also with a pistol.

The only exceptions reserved relate to the rulings of the court on the admission and rejection of evidence, to its giving certain written instructions requested by the state, and to its refusal to give certain written instructions requested by defendant. There is no merit in the state's contention that the bill of exceptions does not show that these refused instructions were requested before the jury retired, and hence that they cannot be considered. Central of Ga. Ry. Co. v. Courson, 10 Ala.App. 581 65 So. 698. We find, however, upon a consideration of them, that, even assuming that each asserted a correct proposition of law applicable to the facts of the case their refusal would not justify a reversal of the judgment of conviction because it appears that each was fully covered either in the oral charge of the court or in written instructions given at defendant's request. General Acts 1915, p. 815, amending section 5364 of the Code of 1907.

None of the written charges that were given at the request of the state have become the subject of criticism in the brief of appellant's able counsel, except the ones numbered respectively 4, 5, and 7, it being conceded--which is undoubtedly true--that all the rest were properly given. The reporter will set out in full said charge 7, the concluding paragraph of which, reading as follows: "And in determining whether the shooting was maliciously done, I charge you that malice on the part of defendant toward deceased may be inferred from the shooting with a pistol, unless the evidence which shows the shooting with a pistol shows it was without malice"

--forms the basis of appellant's counsels' criticism of the charge, which may be best stated in their own language as found in their brief, to wit:

"The last clause of the charge, and which instructs the jury that malice may be inferred from the shooting with a pistol, unless the evidence which shows the shooting 'shows that the weapon was used without malice,' is the equivalent of telling the jury that they might shut their eyes to all proof tending to rebut malice, except any proof thereof that might have been included in the proof of the shooting. No matter how cogent the extraneous proof rebutting all presumption of malice, still, if that rebuttal did not grow out of the proof of the shooting itself, the jury might, under their oaths, according to this charge, ignore it, and, not finding any inherent thing rebutting malice, convict defendant of murder."

Viewing the charge as a whole, and in the light of the evidence, we think it not subject to the criticism named. The part complained of was merely intended to assert, and only asserted the well-known doctrine that in a homicide case malice may be inferred from the intentional use of a deadly weapon unless the evidence which proves the killing disproves the malice. Allen v. State, 148 Ala. 588, 42 So. 1006; 2 Mayf.Dig. 659, par. 7. It is true that the charge did not expressly state that this inference is a rebuttable one, but such idea is implied from, or, to say the least, is not excluded by, the language of the charge. It was hence a correct exposition of the law, and if, from its failure to go further and explain that the inference of malice so authorized to be drawn under the conditions named in the charge was a rebuttable one, and should be allowed to last only until overcome by rebutting evidence offered by defendant, defendant feared that the jury might misunderstand it and be misled into erroneously believing something now suggested by him, but which the charge did not assert, that is, that they, the jury, had a right, unless the evidence for the state which showed the killing showed also an absence of malice, to conclusively infer the existence of malice and to ignore all other evidence, it was his duty to have asked an explanatory charge. Daniel v. Bradford, 132 Ala. 262, 31 So. 455; 5 Mayf.Dig. 150, par. 2; 6 Mayf.Dig. 103, par. 4. His criticism of the charge, even if just, shows, at most, that it was merely misleading. The rule is that the lower court will never be reversed for giving a misleading charge unless it clearly appears that the jury was misled by it to the prejudice of the party against whom it was given. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; 2 Mayf.Dig. 573, par. 17; 6 Mayf.Dig. 110, par. 17. It does not so appear here. On the contrary, the record affords persuasive evidence that the jury could not reasonably have been misled by the charge into believing that it meant what defendant now contends; for it appears from the record that the court, in its oral charge, dealt also with the subject of malice, instructing the jury, among other things, as follows:

"Malice is an inferential fact; that is, it may be inferred from facts and circumstances positively proven, but the measure of proof must be so full as to exclude every other reasonable hypothesis. *** It is the province of the jury to ascertain its existence. Whenever it is proven beyond a reasonable doubt that one person has taken the life of another with a deadly weapon, the law presumes that it was done with malice, and imposes upon the slayer the burden of rebutting this presumption, unless the evidence which proves the killing shows it to have been done without malice."

In the light of this oral charge, which states fully and correctly the law on the subject, we see no room for rational contention that when the court subsequently, in a written instruction given at the instance of the state, correctly stated a part of the law on the subject, the jury were misled into believing that the part not stated was contrary to what the court had instructed them in the oral charge; hence we think baseless the complaint of the defendant here when he contends...