Powell v. State

• Decision Date: 13 June 1912
• Citation: 5 Ala.App. 75,59 So. 530
• Parties: POWELL v. STATE.
• Court: Alabama Court of Appeals

59 So. 530

5 Ala.App. 75

POWELL v. STATE.

Court of Appeals of Alabama

June 13, 1912

On Application for Rehearing, July 11, 1912.

On Application for Rehearing.

Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.

Will W Powell was convicted of manslaughter, and appeals. Affirmed.

The following charges were refused to defendant:

(1) "If any juror has a reasonable doubt whether the defendant acted in self-defense, you cannot find the defendant guilty."

(2) "The court charges the jury that, if it reasonably appeared to the defendant at the time he fired the fatal shot that he was in danger of great bodily harm at the hands of the deceased, the defendant was justified in acting upon such reasonable appearances, although such danger may not have been real."

(3) "The court charges the jury that, if it reasonably appeared to Powell that Le Grand was about to fire upon him with a pistol at the time of the fatal shot, and that he was in danger of great bodily harm therefrom, then Powell might act upon such reasonable appearance and anticipate the firing of the deceased, although it may subsequently appear that the deceased did not fire, and may not have intended to do so."

(4) "The court charges the jury that they may consider the acts of the defendant immediately following the arrival of the train at Riverside as tending to shed light upon the defendant's guilt; and, if such actions are consistent with the defendant's innocence, they may, in connection with the other evidence, generate a reasonable doubt of defendant's guilt."

Knox Acker, Dixon & Sterne, of Anniston, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The defendant was convicted of manslaughter. It was shown by the evidence, without conflict, that the defendant and deceased were on the top of adjoining box cars of a freight train on the Southern Railway, while going between Pell City and Riverside, when the defendant shot and killed the deceased. The killing was in the nighttime, and the defendant was a special officer of the railroad company and on duty riding on the train for the purpose of guarding it from intruders and wrongdoers. The deceased was not a member of the train crew and not shown to have been rightfully on the train. The defendant contends, and the tendency of the evidence introduced in his behalf is to the effect, that, having discovered the deceased on top of the car, he called to deceased, notifying him of the fact that he (defendant) was an officer, and demanding his surrender; that the deceased refused to surrender and resisted arrest. The defendant testified that by the light flashed from the fire box on the engine, when the door was opened, he saw something bright, like a pistol, in the hand of deceased, who was at the time about 20 or 30 feet away on top of the next box car in the train to the one on which the defendant was standing. The defendant further testified that the deceased appeared to be "on his all fours" near the edge of the box car; that the deceased "brought the pistol down pointing toward me [him]," and that he (defendant) called to him (deceased) to put his hands up; that the light from the open fire box was shut off; and that he raised his gun and fired. An examination of the body of deceased disclosed, and it was the uncontradicted evidence, that deceased was shot in the back just to the left of his spinal cord, between the tenth and eleventh ribs, and that the wound ranged upwards. A more extended summary of the evidence is not necessary to an understanding of the rulings and opinion.

The bill of exceptions, after setting out certain evidence, in narrative form, of the state's witness R. C. Brown, contains the statement that the defendant objected to certain parts of the statement of the witness, and moved to exclude the statement. The defendant cannot be allowed to experiment by waiting until the witness has given a responsive answer to a question, not objected to, and then move to exclude the answer, if not satisfactory or unfavorable to him. In the absence of an objection to a question, it is not error to overrule the defendant's motion to exclude the answer. W. U. Telegraph Co. v. Bowman, 141 Ala. 175, 37 So. 493; Dowling v. State, 151 Ala. 131, 44 So. 403; B. R. L. & P. Co. v. Taylor, 152 Ala. 105, 44 So. 580. Objections must be made to questions before answers are given. Lewis v. State, 121 Ala. 1, 25 So. 1017; L. & N. R. R. Co. v. Bogue (Sup.) 58 So. 392.

The court properly allowed the witness Brown to state, "the balance that was said there," having reference to a conversation between the defendant and the witness at Riverside not long after the killing, in which the defendant made certain statements that were shown to be voluntary. What was said by both parties was relevant and admissible for the purpose of connecting the statements made by the defendant and rendering them intelligible. It is also permissible to permit a witness to state what he said in the presence of the accused, if the statement involves such an accusation as calls for a denial. Kirby v. State, 89 Ala. 63, 71, 8 So. 110; Raymond v. State, 154 Ala. 1, 45 So. 895. The statement of the witness, addressed to the defendant: "You said he had a revolver drawn on you; how did you shoot him in the back?"--was certainly such an accusation as called for a denial.

There could be no prejudicial error in refusing to allow the defendant to show by his witness Morrison that the defendant's employer, the Southern Railway Company, shortly before the homicide, had been suffering from train robberies. It could only be competent, if at all, for the purpose of showing that the defendant, at the time of the homicide, was on the train in the performance of his duties as a special officer to look after train robbers and other wrongdoers, and this was not disputed. Even if this evidence should be deemed proper and admissible, the ruling would not constitute reversible error; for the witness Caraway was permitted to testify to this fact, and stated that there had been several train robberies shortly before the night of the killing, and that he and the defendant were on the train that night as special officers, for the purpose of preventing the occurrence of such things. This evidence was uncontradicted, and the exclusion of the same testimony by the witness Morrison, if error, would not be injurious or prejudicial. Code 1907, § 6264; Murphy v. State, 118 Ala. 137, 23 So. 719; Crain v. State, 166 Ala. 1, 52 So. 31; Phillips v. State, 162 Ala. 14, 50 So. 194; Morris v. State (Sup.) 39 So. 608, 611; McGuire v. State, 58 So. 60.

The point is made by counsel for defendant that the court's refusal to allow the defendant to show by the conductor of the train, Cochran, that the deceased was not on the train with the knowledge or consent of Cochran, was injurious to defendant because it precluded the defendant from showing that he had a right to arrest a wrongdoer for an offense committed in his presence although not an officer. But the fact that the defendant was an officer with the right to make arrests was not controverted, and his right to do so was not confined to the authority given under section 6273 of the Code to private persons. It was shown by the evidence that the deceased was not a member of the train crew, and no right or authority for deceased being on the train seems to have been insisted upon, and the case was treated throughout, so far as we can see from the record, on the theory that the defendant was an officer authorized to make arrests and that the deceased was riding on the train without authority--a trespasser. Appellant's counsel in brief treats the case in this light and speaks of the deceased as a trespasser at the time as if this was uncontroverted on the trial.

The court cannot be put in error for refusing charge No. 1, requested in writing by the defendant; for it fails to predicate the constituent elements of self-defense, and therefore submits a question of law to the determination of the jury. Charges hypothesizing self-defense in general terms, which omit to set out the constituent elements of self-defense, have been condemned by the Supreme Court many times. Roden v. State, 97 Ala. 54, 12 So. 419; Miller v. State, 107 Ala. 40, 19 So. 37; Gilmore v. State, 126 Ala. 20, 28 So. 595; Adams v. State, 133 Ala. 166, 31 So. 851; Smith v. State, 130 Ala. 95, 30 So. 432; McGhee v. State, 59 So. 573. The same principle involved, i. e., submitting a question of law to the jury, has been also passed upon by this court. Dungan v. State, 2 Ala. App. 235, 57 So. 117. The case cited by the defendant's counsel (Smith v. State, 68 Ala. 424) in support of this charge has been in effect practically overruled several times, and expressly so in Greer v. State, 156 Ala. 15, 19, 47 So. 300.

Charges Nos. 2 and 3 are faulty, in that each pretermits an honest belief on the part of the defendant that the deceased was about to attack him at the time the defendant fired the fatal shot. Cheney v. State (Sup.) 55 So. 801. The cases ( Kennedy v. State, 140 Ala. 1, 37 So. 90; Fantroy v. State, 166 Ala. 27, 51 So. 931; Trammell v. State, 1 Ala. App. 83, 55 So. 431) cited by appellant in support of these charges will be found, upon investigation in each instance in the charges passed upon, to approve charges predicating a bona fide belief upon the part of the accused that he was in danger of great bodily harm. Charges 2 and 3 are entirely innocent of predicating such a belief.

Charge No. 4...