Owen v. State
| Decision Date | 18 March 1919 |
| Docket Number | 7 Div. 591 |
| Citation | 17 Ala.App. 29,81 So. 365 |
| Parties | OWEN et al. v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Cleburn County; Hugh D. Merrill, Judge.
Shep Owen and John Berry Cheatwood were convicted of an offense, and they appeal. Affirmed.
J.Q. Smith, Atty. Gen., for the State.
The materiality of the testimony sought to be elicited by the question, "Wasn't the custom of your father, when you were not in calling distance, for him to whistle between his fingers?" asked the witness John Orbett Brown on cross-examination, was not apparent from the question itself or from the evidence in the case, and its materiality was not disclosed by statement of counsel, and the ruling of the court on the objection was free from error. Sellers v. State, 7 Ala.App. 78, 61 So. 485; McConnell v. State, 13 Ala.App. 80, 69 So. 333; Tittle v. State, 15 Ala.App. 306, 73 So. 142.
To constitute the basis of "apparent imminent peril" as an element of self-defense, the circumstances surrounding the defendant must be such as to impress a reasonable man that the defendant was in imminent peril of losing his life or of suffering great bodily harm at the hands of the person slain, and the defendant must entertain an honest belief that he is in actual danger at the time he strikes. Cain v. State, 77 So. 453, and authorities there cited. Charge 1 refused to defendant is faulty for not clearly stating this doctrine, and, besides, it pretermits the defendants' freedom from fault and the duty to retreat. Parris v. State, 175 Ala. 1, 57 So. 857.
This disposes of the only two questions presented. There is no error in the record.
Affirmed.
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Raines v. State
...Ala. 380 (1859). "[T]he defendant must entertain an honest belief that he is in actual danger at the time he strikes." Owen v. State, 17 Ala.App. 29, 81 So. 365 (1919). Threats of violence accompanied by an overt act may justify one assaulted in acting more promptly on the appearance of thi......
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Carroll v. State
... ... in making a deadly assault to extricate himself from such ... apparent peril. To justify under such circumstances the party ... resorting to extreme measures must entertain the honest ... belief that his peril is real and imminent. Shep Owen and ... John Berry Cheatwood v. State, 81 So. 365; Bluett v ... State, 151 Ala. 41, 44 So. 84. The refusal of the charge ... was not error ... The ... other questions presented are not insisted upon, and we find ... nothing that warrants further notice ... Affirmed ... ...
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