Nix v. State, 6 Div. 166.

• Decision Date: 15 May 1945
• Docket Number: 6 Div. 166.
• Citation: 22 So.2d 449,32 Ala.App. 136
• Parties: NIX v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 449

32 Ala.App. 136

NIX v. STATE.

6 Div. 166.

Alabama Court of Appeals

May 15, 1945

Rehearing Denied June 5, 1945.

Horace C. Alford, of Birmingham, for appellant.

Wm N. McQueen, Acting Atty. Gen., and L. H. Brassell, Asst Atty. Gen., for the State.

The following charges were refused to defendant:

'1. Gentlemen of the Jury, I charge you, that if the circumstances attending the shooting of James Thomas were such as to justify a reasonable person in believing that they were in intimate danger of death or serious bodily harm at the time of an immediately preceding of the firing of the shot, and if the defendant really believed herself to be in such danger at said time, it would be immaterial whether there was, in fact, any actual danger or not, and if you find from the evidence that such is true, then you should acquit the defendant.'

'2. Gentlemen of the Jury, I charge you that a man may repel force by force in defense of his person against one who manifestly intends, or endeavors by violence or surprise, to commit a forcible felony, such as assault with intent to murder, upon the

defendant. In such cases, the defendant is not required by law to retreat, but may pursue his adversary until he has secured himself from all danger, and even if he kills his adversary, in so doing, it is justifiable self-defense, provided the defendant was free from fault in bringing on the difficulty and did not enter the said difficulty willingly.'

'4. Gentlemen of the Jury. I charge you that if, after considering all the evidence in the case, your minds are left within a state of doubt or uncertainty, that you cannot say beyond a reasonable doubt that the defendant, in shooting James Thomas, acted upon a well-founded and reasonable belief that it was necessary to shoot James Thomas in order to save the defendant from great bodily harm, or that she shot him before such impending necessity arose--then this is such a doubt as will entitle the defendant to an acquittal, and the jury should, in such case, find her not guilty.'

CARR Judge.

Appellant was indicted for the offense of assault with intent to murder and convicted of the lessor charge--assault with a weapon.

Without conflict in the evidence, the defendant shot, with a pistol the party named in the indictment. She claimed self defense. The difficulty occurred on the inside of a cafe which at the time was being operated by appellant.

In view of the conclusions we have reached with reference to the questions presented by the record, it will not add any value to this opinion to set out the tendencies of the evidence.

In his closing argument to the jury, the solicitor stated: 'These negroes were running a honky tonk out there.' The trial court overruled objections to this statement and exceptions were duly reserved.

In brief filed by the Assistant Attorney General it is urged that the question is not properly presented for review by this court because of the omission of a motion to exclude the statement. It seems now to be well settled by our authorities that this is no longer required. American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Waller v. State, 30 Ala.App. 168, 4 So.2d 906.

When the question of reviewing argument of counsel to juries is presented, each case poses issues, facts and atmosphere which are dissimilar to former adjudicated cases. The decision must be reached, therefore, with this very important consideration in mind. Mitchell v. State, 18 Ala.App. 471, 93 So. 46.

Statement of counsel to be objectionable 'must be made as of fact; the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.' Cross v. State, 68 Ala. 476; McGrew v. State, 21 Ala.App. 266, 107 So. 328.

The statement in question was made as a fact. This cannot be denied. Did it find support in the evidence? Honky Tonk is a title or name employed to denote a public place. Its general use has developed in recent years. In our quest for a defined meaning of the term, we were compelled to examine authorities of modern publication. In Webster's New International Dictionary, Second Edition, at page 1196, and Cumulative Annual Pocket Part of 19 Words and Phrases, Perm.Ed., we find the definition to be: 'A low drinking resort.'

See also, Missouri Pac. R. Co. v. Price, 199 Ark. 346, 133 S.W.2d 645.

The evidence in the case at bar discloses that appellant was operating a cafe, in which there was a rockola. Food and soft drinks were served, but no beer or whiskey was sold. The place was styled, 'Rainbow Cafe.' It was here the encounter, the basis for this prosecution, took place. The testimony is silent if the establishment was ever infected with rowdyism or unbecoming conduct. No one testified that people resorted to the place for the purpose of drinking whiskey or beer. On the contrary, appellant introduced evidence of her good character, and among her witnesses were some police officers whose assigned duties familiarized them with the defendant's cafe. They stated that appellant's character was good and that she had never given them any trouble.

In the case of Rowe v. State, 20 Ala.App. 119, 101 So. 91, 92, the defendant was on trial for violating the prohibition law. The evidence for the State was to the effect that a copper worm and some connections- --parts of a still--were found locked in a trunk in defendant's home. In his argument to the jury, the solicitor stated: 'Why, if the court please, he had a whisky still in that house at that time.'

'The defendant would sell liquor to the boys' (meaning the boys of the county) was a statement made to the jury by the solicitor in Roden v. State, 3 Ala.App. 202, 204, 58 So. 72, 73. The charge involved was violating the prohibition law.

The defendant in the case of Brooks v. City of Birmingham, 31 Ala.App. 496, 19 So.2d 74, 75, was on trial, charged with carrying a concealed pistol. The solicitor declared to the jury: 'He is just a gangster.'

In the recent decision of our Supreme Court in Ex parte Johnson (Ike Johnson v. State), 22 So.2d 105, during the argument to the jury the solicitor said: 'I...