Patty v. State

• Decision Date: 12 February 1942
• Docket Number: 7 Div. 686.
• Citation: 6 So.2d 399,242 Ala. 304
• Parties: PATTY v. STATE.
• Court: Alabama Supreme Court

6 So.2d 399

242 Ala. 304

PATTY v. STATE.

7 Div. 686.

Supreme Court of Alabama

February 12, 1942

Appeal from Circuit Court, Cherokee County; W. J. Haralson Judge.

It appears that deceased lived on the defendant's place, in a house a short distance from defendant's home, and that defendant and deceased used the same barn. Mrs. Grimes mother of deceased, testified that she was at the home of deceased on the occasion of the killing; that defendant came running around deceased's house after some pigs, throwing rocks at them, and said to deceased, "Look here, son put those pigs up and keep them up"; that deceased was at the barn hitching up his horses. Witness was asked what defendant said when he ran the pigs around the house, and defendant's objection being overruled, testified that defendant said: "I want you to put these confounded pigs up, and if you don't I am going to have the law up here after you." Over further objection this witness testified: "The boy says, All right, I am going to have them out in two or three days, now starting out. He (defendant) spoke and says, I want you to put those confounded pigs up and keep them up, you are not acting like a man. The boy spoke and says, I am acting about as much of a man as the one I deal with has * * *. In a short time Mr. Patty turns and goes in the back door * * *." Witness further testified that she did not see defendant again for some five minutes; that she was in the toilet with the door closed when she heard defendant say, 'I'll shoot your confounded head off'; that witness heard a shot fired immediately after the word "shoot", and she threw open the door and saw defendant standing eight or ten feet from the entrance to the barn where deceased was, and that defendant, with gun in hand, turned and walked toward his house.

Defendant's evidence tended to show, among other things, that he fired his gun after deceased attacked him with a singletree, striking him several blows.

The following charges were refused to defendant:

"12. The court charges you that if defendant had reasonable cause for believing he was in immediate danger of grievous bodily harm at the time of firing, then you must acquit defendant."

"13. The court charges you that if a reasonably prudent man would have fired under similar conditions then you should acquit this defendant."

"14. The court charges you that if you believe, from the testimony, that defendant believed himself in immediate danger of grievous bodily harm, then you must acquit him."

"15. The court charges you that if you believe, from the testimony, that defendant did no more than he really thought necessary to protect his own life, or to protect himself from grievous bodily harm, then you must acquit him."

Reed & Reed and F. M. Savage, all of Centre, for appellant.

Thos. S. Lawson, Atty. Gen., and John W. Vardaman and J. W. Arbuthnot, Asst. Attys. Gen., for the State.

THOMAS, Justice.

The indictment and conviction were for murder in the first degree. The punishment was fixed "at life imprisonment."

No question is presented as to the arraignment, venire or form of verdict. The questions presented for decision on the appeal relate to the introduction of evidence and the refusal of requested charges.

The difficulty out of which the death of deceased arose is a part of the res gestae of the homicide, and when the whole evidence is considered, the statement of the defendant in regard to keeping the pigs out of the yard was admissible as a part of the res gestae. Alabama Digest, Criminal Law, + 365(2).

Appellant also insists that the trial court erred in permitting the witness Pope to testify that two hours after the shooting, the defendant made the following statement "That he was a dead shot. * * * Good marksman and could have drilled him but just winged him." It is settled in this jurisdiction that declarations against his interest by a defendant before or after the commission of a homicide tending to connect defendant with the crime in question are admissible as evidence against him if the same are shown to have been voluntary. The evidence indicates that such is a fact as to the foregoing declarations. Brindley v. State, 193 Ala. 43, 69 So. 536,...