Ragsdale v. State

• Decision Date: 17 December 1914
• Docket Number: 693
• Citation: 12 Ala.App. 1,67 So. 783
• Parties: RAGSDALE v. STATE.
• Court: Alabama Court of Appeals

67 So. 783

12 Ala.App. 1

RAGSDALE v. STATE.

No. 693

Court of Appeals of Alabama

December 17, 1914

Rehearing Denied Jan. 12, 1915

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

William W. Ragsdale was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The indictment charged the killing of James W McCauley, by shooting him with a pistol, but without premeditation or deliberation. The witness McCauley was a second witness offered by the state. The bill of exceptions states that the rule had been invoked by the state, and the witnesses had all been exclud-from the courtroom, but this witness, however, remained in and sat by counsel for the state. He had not been sworn until he was called as a witness. The state's counsel admitted that they knew he was going to be used as a witness, but denied that they knew he was in the room, and requested that he be sworn and excused from the room, as the state needed him on the examination of witnesses. The witness was a brother of deceased. Herndon, being introduced as a witness, testified that he saw defendant on the day before the killing, and was asked if he heard defendant say anything about McCauley, or what he was going to do to McCauley, the day before the killing. The witness answered, over objection "Defendant said McCauley could not get off for that with him." Wells, a witness for the state, testified that a statement was made to him and Mr. East by defendant shortly after the killing. The question was asked him if "anything was said by you in the nature of a promise, or did you promise him anything, or offer him any reward, or say it would be better for him if he did not make a statement, or worse for him not to make a statement, or anything of that nature?" The witness answered: "No, sir. I did not make any, and never heard any." The witness further answered that he did not know at that time, and did not now know personally, whether defendant had ever been arrested or whether he was in custody. Witness was then permitted to testify that defendant said that he went up to Mr. McCauley and told him they had better settle that little difficulty and McCauley got to cutting, and he had to kill him.

The following charges were refused to defendant:

(4) The presumption is that defendant was free from fault in bringing on the difficulty.

(7) The presumption is that McCauley did not die as a result of the wounds inflicted by defendant.

(8) If you find from the evidence in this case that defendant did kill McCauley, then I charge you that the presumption is that he was justified in doing so.

(9) The presumption is that if defendant kill ed McCauley, his act in doing so was a lawful act.

(27) The presumption in this case is that the act complained of was not done with malice aforethought.

(29) The presumption is that the killing in this case was not done maliciously.

(10) The conduct of deceased at the time of the fatal difficulty may be looked to by the jury to determine the degree of the offense charged, also, in determining the necessity of promptness of defensive measures on the part of defendant, and his guilt or innocence.

(12)The defendant sets up self-defense in this case, and the burden of proof is not changed when he undertakes to prove it; and if, by reason of the evidence in relation to such self-defense, you should entertain a reasonable doubt as to defendant's guilt, he should be acquitted, although you may not be able to find that the self-defense has been fully proven.

(15) If any individual juror has a reasonable doubt arising out of the evidence as to whether defendant acted in self-defense or not, then you cannot convict defendant.

(18) Same as 15 as applied to the whole jury.

(21) There is no such thing in this case as shifting the burden of proof from the state to defendant; the burden being on the state throughout the trial.

(23) lf any individual juror has a reasonable doubt arising out of the evidence in this case as to whether the act charged against defendant were unlawful or not, then you cannot convict him.

(25) The court charges the jury as a matter of law that defendant has a right to be where he was at the time of the shooting complained of.

(26) The rule of self-defense in a case of this kind is that a person may and must act on the reasonable appearance of things.

(28) The burden is on the state to prove that defendant was not free from fault in bringing on the difficulty.

(32) If the jury believe from the evidence that defendant was free from fault in bringing on the difficulty and did not enter into the conflict willingly, and had no reasonable means of escape, and was apparently in imminent danger of his life or exposed to great bodily harm, then he had a right to anticipate his assailant in shooting.

(36) If the circumstances at the time of the shooting were such as to convince the defendant that he was in impending danger to life or limb, and defendant was so convinced, and that to retreat would increase such danger, or from the reasonable appearance of the condition would do so, and he was free from fault in bringing on the difficulty, then I charge you that defendant had the legal right to stand his ground, cease his retreat, and shoot his assailant to death.

(35) If the jury believe from the evidence that defendant did not provoke or bring on the difficulty, that he was passing along the highway in an orderly and peaceful manner, and that deceased came upon him in an insulting manner and advanced towards him and entered into a conflict with him while he was retreating, and afterwards procured his knife and was cutting defendant at the time he was shot, then I charge you that defendant had the right to shoot deceased.

(37) Malice as a matter of law is not presumed from the use of a deadly weapon.

(38) In considering the evidence in this case, it is your duty to take into consideration the relative sizes and ages of deceased and defendant.

(39) The law does not require of a boy 19 years of age that deliberation, caution, judgment, and forethought that it requires of a mature man.

(45) In trying a case of homicide against a boy 19 years old, the jury may take into consideration his age, together with the other evidence in the case.

(42) If you find from the evidence that defendant was free from fault in bringing on the difficulty that resulted in the killing, then it is immaterial, if Ragsdale shot in self-defense, what he said either before or after the shooting.

(43) Same in legal effect as 42.

(44) The fact that defendant had a pistol in his possession at the time of the killing does not deprive him of the right of self-defense.

(41) The mere fact, if it be a fact, that defendant made threats as to deceased down at the furnace would not deprive him of the right to invoke the protection of the doctrine of self-defense.

Estes, Jones & Welch, of Bessemer, for appellant.

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

PELHAM, P.J.

Permitting the state's counsel to introduce the evidence of the witness E.T. McCauley, who had remained in the courtroom when it was shown that the witnesses had been sworn and put under the rule out of the hearing of the court, was a matter of discretion in the trial judge in which no abuse is shown. The witness McCauley was the second witness examined in behalf of the state, and no error prejudicial to defendant authorizing a reversal appears to have resulted. Certainly no abuse of discretion is shown, and that is the question to be considered. Belk v. State, 10 Ala.App, 70, 64 So 515.

The surrounding circumstances and conditions under which the statements of the defendant in the nature of confessions or declarations against interest were made, as well as the nature of the statements themselves, show them to have been entirely voluntary, and they were properly admitted. Dupree v. State, 148 Ala. 620, 42 So. 100d; Love v. State, 124 Ala. 82, 27 So. 217; McKinney v. State, 134 Ala. 134, 32 So. 726; Morris v. State, 146 Ala. 66, 41 So. 274; Burton v. State, 107 Ala. 108, 18 So. 284.

The character of the evidence elicited was in the nature of threats and inculpatory statements made by the defendant shortly before and after the killing, evincing ill will or expressing a menace towards the deceased, and these may be shown independent of a predicate. Shelton v. State, l44 Ala. 106, 42 So. 30; 1 Mayf.Dig. 262, 263, and cases there cited; Ex parte State, 181 Ala. 4, 61 So. 53.

Although the shirts worn by the deceased at the time of the killing and perforated by the shots had been laundered between the time of the fatal rencounter and the trial, they were a proper subject of evidence after they had been properly identified and this fact proven, so that the jury might have the benefit of whatever physical testimony the articles showing the bullet holes afforded in the way of illustration, explanation, or contradiction with reference to what eyewitnesses to the transaction had testified. It has long been the rule in this state as announced by the Supreme Court, that the clothes the deceased wore at the time of the killing are admissible in evidence, and the rule is not to be changed simply because the clothes have been washed, if they afford other illustrative evidence aside from such marks or stains as may have been removed in the cleansing process, such as bullet holes. Pate v. State, 150 Ala. 10, 43 So. 343.

There was no abuse of the judicial discretion in permitting the state's counsel to propound questions to the defendant on cross-examination as to where he got the pistol with which he did the shooting, how many cartridges he bought at the time which pocket he had the pistol in, etc. The law allows great latitude on...