Parke v. Dennard

• Decision Date: 18 October 1928
• Docket Number: 2 Div. 924
• Parties: PARKE v. DENNARD.
• Court: Alabama Supreme Court

118 So. 396

218 Ala. 209

PARKE v. DENNARD.

2 Div. 924

Supreme Court of Alabama

October 18, 1928

Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.

Action by Myrtle Dennard, as administratrix of the estate of Randolph Dennard, deceased, against Clifford W. Parke. Judgment for plaintiff, and defendant appeals. Affirmed.

The refusal of requested instructions covered by those given in not error.

The following were charges given for plaintiff:

1. The evidence of character of deceased is immaterial if defendant was the aggressor or was not acting in his defense or in defense of his wife.

2. Whatever may be a man's character, he is entitled to the protection of the law, and it is as wrong in the eye of the law to slay him as it is the most peaceable and law-abiding citizen in the community.

3. Evidence of the character of the deceased is limited in its consideration by the jury to determining solely whether the defendant in shooting the deceased acted in his defense or in defense of his wife.

4. To murder the vilest and most profligate of the human race is as much a crime as if he had been the best, most virtuous and the greatest benefactor of mankind, and the jury can not consider evidence of the character of the deceased in arriving at the amount of their verdict, in the event their verdict is for the plaintiff.

8. The court charges the jury that the burden is upon the defendant under the defendant's plea B to reasonably satisfy the jury from the evidence--First, that the defendant was free from fault in bringing on the difficulty which resulted in the death of plaintiff's intestate; second that the defendant was, or reasonably appeared to be, in imminent danger of death or of great bodily harm at the hands of plaintiff's intestate; and third, that the defendant fired the shot which proved fatal to the plaintiff's intestate in the honest belief that such peril was impending and that it was necessary for him to so shoot in order to save himself from death or great bodily harm; and if the defendant has not reasonably satisfied the jury from the evidence of the existence of each of these elements of self-defense, then the jury can not find for the defendant under his plea B.

9. The court charges the jury that the burden is upon the defendant under his plea C to reasonably satisfy the jury, from the evidence, that at the time of the shooting of plaintiff's intestate by the defendant, first, that the defendant and his wife were both free from fault in bringing on the difficulty which resulted in the death of plaintiff's intestate; second, that defendant's wife was, or reasonably appeared to be, in imminent danger of death or great bodily harm at the hands of plaintiff's intestate; and third, that the defendant fired the shot which proved fatal to plaintiff's intestate under the circumstances aforesaid, and in the honest belief that such peril was impending, and that it was necessary for him to so shoot in order to save his wife from death or great bodily harm; and if the defendant has failed to reasonably satisfy the jury from the evidence of the existence of each of these elements, then the jury can not find for the defendant under the defendant's plea C.

13. A moral or emotional insanity, so-called, unconnected with disease of the mind, or irresistible impulse resulting from mere moral obliquity or wicked propensities and habits, is not recognized as a defense in our courts.

14. If the defendant knew at the time he fired the shot which proved fatal to Randolph Dennard that it was wrong to shoot Dennard, and if he did not act under the duress of a diseased mind or insane delusion but from motives of anger, revenge, or other passion, he cannot claim to be shielded from punishment on the ground of insanity.

B. I charge you, gentlemen of the jury, that the defendant says he is not guilty by reason of insanity, and on that plea, I charge you that the burden rests upon the defendant to establish the truth of said plea to the reasonable satisfaction of the jury, that he was insane at the time that he killed plaintiff's intestate.

D. I charge you, gentlemen of the jury, that the defendant is presumed to be sane, and responsible at law for his acts, and that this presumption continues, until the plea of not guilty by reason of insanity has been proved to the reasonable satisfaction of the jury.

J. I charge you, gentlemen of the jury, that mere drunkenness or intoxication is not insanity.

R. The defendant as a defense to this suit says he was insane at the time he killed Randolph Dennard. I charge you that the burden is upon the defendant, not only from the evidence to prove to your reasonable satisfaction that at said time he was afflicted with a disease of the brain, but also to prove to your reasonable satisfaction that at said time he did the act--killed said Dennard--in consequence solely of such disease, and that at said time he was afflicted to such an extent by said disease of the brain as to render him incapable of determining between right and wrong, or of perceiving the true nature and quality of said act, or if he did have such knowledge and perception, yet by reason of the duress of such disease of the brain he had so far lost the power to choose between right and wrong, and to avoid doing said act, as that his free agency was at the time destroyed, and that said act was so connected with said disease of the brain, in the relation of cause and effect, as to have been the product of its solely.

T. I charge you, gentlemen of the jury, that the opinions of nonexpert witnesses are not conclusive upon the jury; they are to be weighed just like other evidence; such witnesses can not express an opinion that a person is insane without first testifying before you the facts claimed by him to show or indicate an abnormal condition of the mind of the defendant; and it is your province and duty to weigh and consider such facts so testified by such

nonexperts, whether such facts, assuming them to be true, indicate or show insanity.

U. I charge you, gentlemen of the jury, you may consider the testimony of the defendant himself in this case, whether intelligent or otherwise, whether rational or otherwise, in determining whether he was insane or not.

X. I charge you, gentlemen of the jury, that you may look at the fact that the defendant is peculiarly interested in the result of this suit in determining what weight or credibility you are to give to defendant's testimony.

This charge was refused to defendant:

A. I charge you, gentlemen of the jury, that the fact, if it be a fact, that defendant shot the deceased in the back, does not deprive defendant of the benefit of his plea of self-defense, if you are reasonably satisfied from the evidence that defendant did not know which way deceased back was turned.

Defendant was asked this question:

"Are there any other conspiracies against your life that you know of?"

The action of the court in sustaining objection to this question is made the basis of the eighth assignment of error.

Defendant offered to introduce in evidence certified copies of indictment and judgment entry in the criminal prosecution against defendant. The action of the court in sustaining plaintiff's objection to the introduction of the documents is made the basis of assignments 23 and 24.

Hobbs, Craig & Brown, of Selma, for appellant.

Reese & Reese, of Selma, and Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

GARDNER J.

Appellant, Clifford W. Parke, on the night of October 4, 1926, between the hours of six and seven o'clock, shot and killed Randolph Dennard. The shooting occurred at the home of Parke, in Selma. Appellee, Myrtle Dennard, is the widow of Randolph Dennard, and as administratrix of her husband's estate, instituted this suit against Parke under our Homicide Statute (section 5696, Code of 1923) to recover damages for the alleged wrongful killing of her intestate. There was verdict and judgment for the plaintiff in the sum of $20,000, from which defendant prosecutes this appeal.

Defendant interposed pleas of autrefois acquit, former jeopardy, and res adjudicata. These pleas were based upon defendant's acquittal and discharge upon his plea of insanity of the offense of murder of plaintiff's intestate after due indictment, arraignment, and trial for the offense.

The ruling of the trial court sustaining plaintiff's demurrer to these pleas is supported by the decided weight of authority as well as sound reasoning. 17 Corpus Juris, pp. 981-2; 16 Corpus Juris, pp. 235-6. The case of Phillips v. Kelly, 29 Ala. 635, is, in principle, in harmony with the weight of authority as above indicated. See, also, Kansas City R.R. Co. v. Sanders, 98 Ala. 293, 13 So. 57.

Issue was joined upon the plea of the general issue, and special pleas of self-defense, defense of his wife, and insanity.

Plaintiff's demurrer to plea D--defense of defendant's home--was sustained, and this ruling is assigned for error. This plea charges that defendant's "right to the privacy security, and control of his home was, or reasonably appeared to be, in imminent danger of being destroyed by plaintiff's intestate." There is no averment that defendant or any member of his family was in any peril or that any felony was about to be committed. As held by this court in Lewis v. State, 178 Ala. 26, 59 So. 577, a person has "no right to kill to prevent a mere trespass, which is unaccompanied by imminent danger of great bodily harm or felony, and which does not produce in his mind the reasonable belief of such danger." To like effect are the cases of Carroll v. State, 23 Ala. 28, 58 Am.Dec. 282, and Bray v. State, 16 Ala.App. 433, 78 So. 463. The case of Crawford v. State, 112 Ala. 1, 21 So. 214, relied on...