Roberson v. State

• Decision Date: 14 June 1928
• Docket Number: 8 Div. 9
• Citation: 117 So. 412,217 Ala. 696
• Parties: ROBERSON v. STATE.
• Court: Alabama Supreme Court

117 So. 412

217 Ala. 696

ROBERSON v. STATE.

8 Div. 9

Supreme Court of Alabama

June 14, 1928

Appeal from Circuit Court, Colbert County; Charles P. Almon, Judge.

Walter Roberson was convicted of murder in the first degree, and he appeals. Reversed and remanded.

A.H Carmichael, of Tuscumbia, Stell & Quillin, of Russellville and W.L. Almon, of Florence, for appellant.

Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for the State.

GARDNER J.

Appellant was indicted for the murder of Tillman Powers Miller, and, from his conviction of murder in the first degree, with punishment fixed at life imprisonment, he prosecutes this appeal.

The defendant rested his case upon his plea of self-defense. The deceased was mortally wounded by pistol shot fired by defendant one Sunday afternoon (June 12, 1927) at a public gathering, and died Tuesday thereafter. The evidence for the state tended to show that deceased was unarmed, made no hostile demonstration toward defendant, and that defendant, without any provocation, shot deceased twice, after warning the crowd to "look out." The evidence for the defendant, however, was to the contrary, and tended to show that defendant, upon seeing deceased near the refreshment stand, spoke to him as follows: "Mr. Miller, I would like to see you a minute if you are not busy," and suggested they sit down together, to all of which deceased replied, "What do you want with me. I have got no talk for you," then applied to defendant a vile epithet, throwing his right hand to his left breast under his coat, drawing a pistol, and firing at defendant, whereupon defendant immediately drew his pistol, which was in his right trouser pocket (defendant had on no coat), and fired two shots in rapid succession. Defendant insists that he had previously seen deceased on the grounds that day, and they had spoken to each other, and that he was not looking for him at the time he spoke to deceased at the refreshment stand, but looking for some one else; that, seeing him close by, he merely thought he would have a talk with him; that his pistol had been in his car, where he frequently left it for some time, but that he took it out to keep some one from stealing it, and not on account of deceased, whom he did not know was present at that particular time. Other details of the tragedy need not be here stated.

In the oral charge, the trial court gave no instructions to the jury on manslaughter in the first degree, though his attention was directed thereto by charges AA and BB refused to defendant. The court evidently entertained the view there was no tendency of the evidence to warrant a conviction of manslaughter in the first degree. We are persuaded this was an erroneous view. Whether or not the homicide is the offspring of malice is the characteristic which distinguishes murder and manslaughter. "Mere words, no matter how insulting, never reduce a homicide to manslaughter. Manslaughter is the unlawful killing of a human being without malice; that is, as the unpremeditated result of passion-heated blood--caused by a sudden, sufficient provocation. And such provocation can, in no case, be less than an assault, either actually committed or menaced under such pending circumstances as reasonably to convince the mind that the accused had cause for believing, and did believe, he would be presently assaulted, and that he struck, not in consequence of a previously formed design, general or special, but in consequence of the passion suddenly aroused by the blow given or apparently about to be given." Mitchell v. State, 60 Ala. 26; Reeves v. State, 186 Ala. 14, 65 So. 160; Davis v. State, 214 Ala. 273, 107 So. 737; Vaughn v. State, 201 Ala. 472, 78 So. 378; Peagler v. State, 207 Ala. 586, 93 So. 536.

In Reeves v. State, supra, it was distinctly pointed out that a defendant who claims to have acted in self-defense is not thereby precluded from asserting that the homicide was committed under circumstances reducing it to manslaughter, where the evidence before the jury would so authorize.

In the instant case, there was evidence before the jury tending to show that, upon defendant addressing deceased in a manner not calculated or intended to provoke any difficulty, deceased angrily cursed defendant, immediately drawing a pistol from his left side, firing it at defendant, and that this was the first shot fired. Clearly, if this version of the difficulty was accepted by the jury, they would be authorized to convict of manslaughter in the first degree under the authorities above cited. In the instant case there is evidence tending to show previously existing bad feeling between the parties, and threats made by deceased against defendant, which, when considered with all the other evidence in the case, might authorize the jury in finding that the provocation sufficient to reduce the offense to manslaughter was sought by defendant to the end that he might have opportunity to execute his malice. In such event, the provocation would not suffice, for as said by this court in Stewart v. State, 78 Ala. 436:

"A provocation will avail nothing, *** if it is sought for and induced by the act of the defendant, in order to afford him an opportunity to execute his malice. In such a case, he acts from malice, whatever may be the extent of his passion at the moment of the killing."

But as said by the court in that case, and as applicable here:

"Whether the defendant acted from the one or the other of these motive powers--from the sudden heat of passion, or from malice or formed design--is a question purely of fact for the jury."

We are not here concerned as to evidence offered, whether true or false, nor with the...