Perry v. State

• Decision Date: 25 February 1892
• Citation: 10 So. 650,94 Ala. 25
• Parties: PERRY v. STATE.
• Court: Alabama Supreme Court

10 So. 650

94 Ala. 25

PERRY v. STATE.

Supreme Court of Alabama

February 25, 1892

Appeal from circuit court, De Kalb county; JOHN B. TALLY, Judge.

Albert Perry was convicted of manslaughter in the second degree, and appeals. Reversed.

The only exception reserved, as is shown by the bill of exceptions, went to the refusal of the court to give the following written charges requested by the defendant: (1) "The court charges the jury that the law does not require a man to retreat from his dwelling-house, and that his place of business (for this occasion, pro hac vice) is his dwelling-house." (2) "The court charges the jury that if one has reasonable apprehension of great personal violence, involving imminent peril to life or limb, he has the right to protect himself even to the extent of taking another's life, if such protection cannot be otherwise secured." (3) "The court charges the jury that if they find from the evidence that Albert Perry used all the means in his power consistent with his safety to avoid the danger before he fired at Lee Williams, and was not in fault in bringing on the difficulty, then they must acquit him." (4) "the court charges the jury that if under the evidence in this case, they find that there were such acts as to create in the mind of a reasonable man apprehension that there was great danger to his life, or there was danger of his suffering grievous bodily harm, then the defendant was not forced to retreat, but might take Lee Williams' life, if the defendant was not in fault in bringing on the difficulty." (5) "The court charges the jury that retreat is not required when the assault is made with a deadly weapon." (6) "If the jury believe from all the evidence in this case that Albert Perry was lawfully and peaceably engaged in hitching up the sheriff's buggy, and, while so engaged, Lee Williams rushed upon him with a deadly weapon, and that Albert Perry had reasonable cause to believe, and did believe, that he was in danger of losing his life or of receiving great bodily harm at the hands of said Lee Williams, and that said danger was imminent, and Albert Perry was without fault on his part then Perry had the right to strike in self-defense, and if apparently necessary, under all the circumstances proven, for his own protection to take the life of his assailant, he would have a right to do so." (7) "If the jury believe from all the evidence in this case that Albert Perry was lawfully and peaceably engaged in hitching up the sheriff's buggy, and, while so engaged, Lee Williams rushed upon him with a deadly weapn, and that Albert Perry did believe, and had reasonable ground to believe, that he was in danger of losing his life or of receiving great bodily harm from the said Lee Williams, then he had the right to strike in self-defense." (8) "The court charges the jury that if they believe from the evidence that Albert Perry was at Mr. Frazier's house in the rightful discharge of his work, and that he did nothing to foster or bring on the difficulty with Lee Williams, the mere fact of his going to his house and getting his gun would not of itself alone, and with no act or demonstration of using it until he was forced to do so by the act of Lee Williams, take from him the right to shoot in self-defense, if he could not have escaped danger by retreating." (9) "The court charges the jury that the defendant, if they find he went home and got a gun had the right to peaceably return and hitch up the horse, and that he had the right to bring with him a gun for protection only." (10) "If the jury believe that Albert Perry went to his house and procured a gun, and in doing so was not actuated by any motive of preparing himself to commence or enter upon a difficulty with Lee Williams, but solely and only for the purpose of being prepared to protect himself himself from an attack that there was a reasonable apprehension would be made upon him, and would endanger his life or put him in danger of receiving great bodily harm, and that Perry returned to continue in a peaceable manner the performance of the service for Sheriff Frazier in which he was engaged, and after he so returned he did nothing to renew the former difficulty or to bring on or provoke a difficulty with Williams, then the mere fact that he had gone to his house, armed himself, and returned to his work, would not deprive him of the right of self-defense." (11) "The court charges the jury that while the law requires that Albert Perry should be in a situation of either real or apparent danger to life or of receiving grievous bodily harm that that danger was imminent, and that he should be reasonably justified in shooting, yet the law only requires that he should exercise his reason,-should act as a reasonable man would have acted under all the circumstances; and if, under those circumstances, a reasonable man would have believed that he was in danger of losing his life or of receiving great bodily harm, and that such danger was then impending, and said perry did so believe, and was not the aggressor in the difficulty, and was reasonably free from fault, then he had a right to defend himself, even to the taking of the life of Lee Williams."

L. A. Dobbs, for appellant.

William L. Martin, Atty. Gen., for the State.

STONE C.J.

The law must and does place a high estimate on human life, and the circumstances must be exceptional to excuse its being taken otherwise than in punishment of some crime which the law itself has made capital. Hence it is that...