Pollard v. State

• Decision Date: 13 April 1915
• Docket Number: 124
• Citation: 68 So. 494,12 Ala.App. 82
• Parties: POLLARD v. STATE.
• Court: Alabama Court of Appeals

68 So. 494

12 Ala.App. 82

POLLARD v. STATE.

No. 124

Court of Appeals of Alabama

April 13, 1915

Rehearing Denied May 11, 1915

Appeal from Law and Equity Court, Hale County; Charles E. Waller Judge.

Ben Pollard was convicted of manslaughter and he appeals. Affirmed.

The following charges mentioned in the opinion were refused to defendant:

"(5) If you believe that defendant was in imminent danger of death or great bodily harm, at the time he shot Payne, or, if not actually in such danger, that the circumstances surrounding him were such as to create in the mind of a reasonable man the honest belief that he was in such danger, and defendant honestly believed he was in such danger, you must acquit him."

"(15) If you believe the evidence in this case, you cannot find that defendant was at fault in bringing on the difficulty.

"(16) If you believe the evidence in this case, you cannot find that defendant was at fault in bringing on the difficulty, and if you believe from the evidence that defendant, at the time of the shooting, was in imminent danger of death, or great bodily harm from Payne, or if not actually in danger, the facts and circumstances surrounding him at the time were such as to create in the mind of a reasonable man the honest belief that he was in imminent danger, and did create such honest belief in the mind of defendant, you should acquit."

"(18) If you believe that when Payne entered Pollard's office just before he was killed, Pollard was in his office, doing nothing to Payne, then I charge you that nothing that happened at Val Pollard's store, or elsewhere before that time between Payne and Pollard, can be considered by you as putting Pollard at fault in bringing on the difficulty."

"(11) If Pollard was free from fault in bringing on the difficulty at the time of the shooting, the fact that at some earlier time in the evening he had covered Payne with a gun and cursed him in Pollard's store would not cut off his right of self-defense, if at the time of the shooting he was in imminent danger of death or great bodily harm."

R.B Evins, of Greensboro, for appellant.

W.L. Martin, Atty. Gen., and W.H. Mitchell Asst. Atty. Gen., for the State.

PELHAM P.J.

Many of the principal questions presented by the record in this case are on rulings of the trial court involving a consideration of whether the defendant was shown without conflict in the evidence to have been free from fault in provoking or bringing on the difficulty. It is impressively urged by counsel in behalf of the defendant in brief filed that the record presents a case where the evidence is without conflict in showing that the defendant was free from fault. The fatal encounter took place in the office of the defendant at Newberne, Ala., and if we should limit ourselves in considering this question to a narration of the facts as set out in the bill of exceptions, showing only the immediate difficulty or encounter resulting in the defendant's firing the fatal shot, the force of the argument, as applied to these facts alone, on the proposition of freedom from fault, is most convincing.

It appears from the evidence that during the afternoon of the same day on the evening of which the deceased went to the office of the defendant armed with a shotgun and threateningly presented it in a shooting position at the defendant and was shot and killed by the defendant, several difficulties or embroilments had taken place between the parties that formed but one continuous transaction resulting in the killing. The quarrel had its inception in these prior difficulties, they are incidents of the main fact, they shed light on what was done, and they are material in ascertaining the manner of bringing on the killing, and are pertinent circumstances to be weighed by the jury in determining who was at fault. Johnson v. State, 102 Ala. 1, 16 So. 99. It may be generally said that all are parts of one continuous transaction, though not shown to have had any immediate connection with the offense, shed light on the main inquiry, and are admissible and properly looked to for that purpose. Jordan v. State, 81 Ala. 20, 1 So. 577; Churchwell v. State, 117 Ala. 124, 126, 23 So. 72; Armor v. State, 63 Ala. 173.

It is plain from the evidence set out that the difficulty resulting in the killing grew out of, was connected with, and was a part of, these minor difficulties that in point of time were the forerunners of it. It is evident that the deceased, who was under the influence of liquor and in a quarrelsome mood, was mainly at fault in these disturbances, but it does not follow that the defendant was absolutely free from fault in provoking or bringing on the fatal difficulty, and in order for the defendant to invoke the doctrine of self-defense it is the established and well-known rule in this state that he must be wholly free from fault in encouraging or provoking the difficulty. Crawford v. State, 112 Ala. 1, 21 So. 214; Baldwin v. State, 111 Ala. 11, 20 So. 528; Roberts v. State, 171 Ala. 12, 54 So. 993. This rule admits of no qualification of the requirement. The defendant must have been entirely free from fault or wrongdoing on his part which had the effect of bringing on the difficulty. Crawford v. State, supra; Griffin v. State, 165 Ala. 47, 48, 50 So. 962. The fact that the defendant did not provoke or encourage the difficulty is not the equivalent of freedom from fault (Rose v. State, 144 Ala. 114, 42 So. 21), and it was held in the case cited, where it was shown that the defendant struck the horse of the deceased prior to the difficulty, that it became a jury question whether this was calculated to provoke or bring on the difficulty. It was held in Jackson v. State, 81 Ala. 33, 1 So. 33, that merely asking a question may be sufficient to provoke a difficulty.

In the instant case, from the evidence appearing in the record, it is shown that on the occasion of one of the difficulties between the defendant and the deceased on the same afternoon of the killing, just a short time before the fatal encounter the defendant covered the deceased with a shotgun and ordered him from his (defendant's) office, cursing the deceased at the time of forcing him to leave at the point of a gun. On another occasion the same afternoon, after this incident, and a very short time before the killing, an altercation or difficulty took place between the defendant and the deceased on the streets of the town or at the store of one Val Pollard, in which the defendant forced the deceased to surrender his pistol at the point of a shotgun. It is shown that defendant at that time cursed and abused the deceased and carried the pistol of the deceased to his (defendant's) office and kept it there until the deceased (who had armed himself with a shotgun) went to the defendant's office on the occasion of the final difficulty when the deceased was killed by the defendant. There was evidence, also, having a tendency to support the theory of the state's contention that when the deceased went to the office of the defendant at the time the killing occurred, he had as part of his object in going a purpose to secure or recapture his pistol that the defendant had taken from him and carried to the office. This phase of the evidence, under the rule above stated and authorities cited, made it a jury question whether the actions of the defendant in forcing the deceased to surrender his pistol and taking possession of it and keeping it in his office, after having cursed and abused the...