Richardson v. State

• Decision Date: 29 January 1920
• Docket Number: 7 Div. 13
• Citation: 85 So. 789,204 Ala. 124
• Parties: RICHARDSON v. STATE.
• Court: Alabama Supreme Court

85 So. 789

204 Ala. 124

RICHARDSON v. STATE.

7 Div. 13

Supreme Court of Alabama

January 29, 1920

Rehearing Denied Feb. 14, 1920

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

James Richardson was convicted of murder, and he appeals. Reversed and remanded.

McClellan J., and Anderson, C.J., and Thomas, J., dissenting.

In a prosecution for killing defendant's son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce requested charge on self-defense, failing to stipulate for defendant's honest belief that he was in imminent peril, was properly refused.

The following charges were refused to the defendant:

(1) I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, that is sufficient to create a reasonable doubt in your minds, then the jury should give the defendant the benefit of the doubt and acquit him.

(2) I charge you, gentlemen of the jury, that the law of Alabama gives a person the same right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm as is due to prevent his life being taken; he may excusably use this necessary force to save himself from any felonious assault.

(3) I charge you, gentlemen of the jury, that if at the time of the firing of the fatal shot by Mr. Richardson he entertained an honest belief that he was in danger of suffering death or dangerous bodily harm at the hands of John Baxter, and Mr. Richardson was without fault in bringing on the difficulty with John Baxter, and there was no reasonable means of retreat without increasing his danger, then he had a right to shoot Baxter under three conditions, and it would be your duty to acquit him.

(4) I charge you, gentlemen of the jury, that if you believe that the defendant had the pistol on the night of the tragedy for the means only of defending himself against unlawful violence at the hands of John Baxter, and not for offensive purposes, then he would have been justified in carrying the pistol on the occasion of the tragedy.

(5) I charge you, gentlemen of the jury, under the laws of Alabama, where a person has a good reason to apprehend an attack from the hand of another he is justified in carrying a pistol on his person, even though he carry it concealed provided he carry such a pistol for defensive and not offensive purposes.

(6) I charge you, gentlemen of the jury, that if you find from all the evidence in the case that John Baxter had threatened the life of the defendant or his wife, the daughter of the defendant, as testified to by the witnesses in the case, and you are convinced by this testimony that he had good reason to apprehend an attack from John Baxter, then he would have been justified in carrying the pistol, on the night of the tragedy, in his pocket, as testified in the case.

(7) The court charges the jury that if the defendant shot under a bona fide belief that his life was in danger, and that under all the circumstances he had reasonable cause to believe that he was in imminent danger at the moment the shot was fired, it would be immaterial whether there was such actionable danger or not.

(8) I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, that is sufficient to pass a reasonable doubt in your minds, then the jury should give the defendant the benefit of the doubt and acquit him.

(9) I charge you, gentlemen of the jury, that if the defendant did not provoke the difficulty or bring it on, and the deceased made an overt act or attempt to reach his hip pocket for a weapon, and he acted in so doing in such a manner as to indicate to a reasonable man that his intention was to do great bodily harm to the defendant, and there was no reasonable mode of escape or retreat without increasing his danger, and the defendant honestly believed he was in danger of great bodily harm at the hands of the deceased then the defendant was authorized to anticipate the deceased and kill him, and if the jury has a reasonable doubt on this proposition they must find defendant not guilty.

(10) The law does not impose upon a person attacked with murderous intent the duty to retreat, unless the evidence in the case shows that the person could have retreated without increasing his peril, and if you find from all the evidence in the case that John Baxter made such overt acts or demonstrations with reference to procuring a pistol from his hip pocket as was calculated to induce in the mind of a reasonable man the honest belief that he was in great danger in consequence of such demonstrations, of receiving grievous bodily harm or death, and such demonstration did induce in the mind of Mr. Richardson such belief, that is, that he was about to receive from the hands of John Baxter grievous death or grievous bodily harm, and he was free from fault in provoking the difficulty between himself and John Baxter, then he would have the right to have shot John Baxter, and it would be your duty to acquit him.

(11) If John Baxter, the deceased, threatened to kill his wife, Maud Baxter, the daughter of defendant, Richardson, and that on the night of the tragedy on Noble street, resulting in the death of John Baxter, Maud Baxter, his wife, was wholly free from fault in bringing on the difficulty with him, and there was no reasonable mode for her to retreat without increasing her peril, and that John Baxter had made towards her an overt act or attempt at assault of such a nature as would have produced in the mind of a reasonable person that, as a result of such impending assault or threatened assault at the hands of John Baxter, his wife, the daughter of the defendant, was in danger of receiving death or grievous bodily harm, and that the defendant witnessed these overt acts on the part of John Baxter, and was honestly induced to believe in consequence of the same that Maud Baxter was in danger as above explained, then defendant, Richardson, in order to save his daughter from death or grievous bodily harm, had the right to anticipate John Baxter, and fire first, and slay him, and if these be the facts of this case your verdict must be not guilty.

(12) If the jury are reasonably satisfied from the evidence that neither the defendant nor Mrs. Baxter knew anything at all about John Baxter coming on to Noble street the night of the killing, or had any information that he would be there, and if the Richardson family went to the point on Noble street where the killing occurred, accompanied by Mr. Richardson and Mrs. Baxter, and were standing together in a quiet, orderly, and peaceable manner, and that John Baxter had previously threatened to kill Mr. Richardson, or Mrs. Baxter, and the little Baxter child, and that he approached them at the time and place of killing, and that neither Mr. Richardson nor Mrs. Baxter brought on, provoked, or produced the difficulty, and that the deceased at the time and under the conditions placed his hand in his pocket, or reached his hand in the direction of his pocket, in a threatening way, as if to draw a weapon, and that he did so, if you find from the evidence he did so, in a manner reasonably calculated to produce in the mind of a reasonable man

an honest and bona fide belief that he was about to receive death or grievous bodily harm from the deceased, and there was no reasonable mode of escape without increasing the defendant's peril, then the defendant had the right to shoot first, and defendant would have had the right to act upon the reasonable appearance as above explained, whether John Baxter had a pistol in his pocket or not, and if he shot him under these conditions, for either the protection of himself, or Mrs. Baxter, or the little Baxter child, it is your duty to acquit him.

(13) I charge you, gentlemen of the jury, that the undisputed proof in the case shows that Maud Baxter was the daughter of defendant Richardson, if Maud Baxter was wholly free from fault in provoking the difficulty, and there was no reasonable means for her retreat, without increasing her danger, and the actions of John Baxter, either real or apparent, towards her, were such as to have induced in the mind of a reasonable person that they were about to receive death or grievous bodily harm at the hands of John Baxter, and Mr. Richardson observed such conduct on his part, and such conduct induced in the mind of Mr. Richardson the honest and bona fide belief that his daughter was about to be attacked, under these conditions, under the law of Alabama, he had the same right to have defended her as he would have to defend himself under similar conditions, and he would have had the right to have anticipated John Baxter, and fired first; and if you find from the evidence in the case that such were the facts, then it is your duty to find the defendant not guilty.

(14) I charge you, gentlemen of the jury, that in the present case it is for you to determine from the testimony which party, the deceased or the defendant, commenced the affray. There is a dispute in the testimony relating to the conduct of the parties immediately preceding the fatal act. There is a dispute in the testimony as to whether the deceased was the aggressor, or made hostile demonstrations towards the defendant, prior to the time he was shot or not; the threats alleged to have been made by the deceased against the defendant have been admitted in testimony for the purpose of enabling the jury to determine, from such threats, whether or not as a matter of fact the deceased did make a demonstration or overt act towards the defendant, at

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