Robinson v. State

• Decision Date: 30 June 1939
• Docket Number: 6 Div. 316.
• Citation: 29 Ala.App. 47,191 So. 649
• Parties: ROBINSON v. STATE.
• Court: Alabama Court of Appeals

191 So. 649

29 Ala.App. 47

ROBINSON v. STATE.

6 Div. 316.

Court of Appeals of Alabama

June 30, 1939

Rehearing Denied Oct. 3, 1939.

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Charlie Robinson was convicted of manslaughter in the first degree and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Robinson v. State, 6 Div. 584, 191 So. 655.

Beddow Ray & Jones and J. Howard Perdue, Jr., all of Birmingham, and Pennington & Tweedy, of Jasper, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.

BRICKEN, Presiding Judge.

The appellant was tried in the court below upon an indictment which charged that he, unlawfully and with malice aforethought, but without premeditation or deliberation killed Homer Collins Loveless by shooting him with a pistol.

Upon his arraignment in the court below the defendant interposed his plea of not guilty and throughout his trial insisted that he was justified in shooting the deceased, who, the defendant claimed, was then and there making an unjustified attack upon him, in the defendant's own home, and that, at the time he shot the deceased, he was in imminent danger of losing his own life, or of suffering great bodily harm, at the hands of the deceased, in a difficulty forced upon the defendant by the deceased, without fault on his part.

The defendant was convicted, in the court below, of the offense of manslaughter in the first degree, and was adjudged guilty of said offense in accordance with the verdict of the jury, and was thereupon sentenced, by said court, to imprisonment in the penitentiary for a term of three years, as fixed by the jury.

It is shown by the evidence in this case, without substantial dispute, that at the time of the alleged difficulty Mr. Loveless, the deceased, was a large and powerful man, weighing around 225 pounds, and that he bore the general reputation in the vicinity where he lived of being an overbearing, turbulent, high tempered and dangerous man, when drinking. The evidence also tended to show that the deceased was drinking, but not drunk, at the time of the fatal difficulty.

As to the defendant, the evidence shows that at the time he shot the deceased, he weighed around 150 pounds and that he had been previously convicted of the offense of receiving or concealing stolen property. There was no evidence that he was fussy, bloodthirsty or dangerous, or that he bore this reputation, whether drinking or not.

The evidence further shows that the difficulty between the defendant and the deceased occurred on the night of January 7, 1938, in the defendant's own home, and that at this time, and prior thereto, the relationship between them had been intimate, friendly and cordial. They spent the afternoon of the day of the difficulty, practically the entire afternoon, in driving around in an automobile with two of their friends, and did not return to Cordova, their home town, until about dark. When they did return they stopped at a cafe, then conducted by a sister-in-law of the defendant, of whom the defendant inquired as to the whereabouts of his wife. On being informed that his wife, in company with Mrs. Loveless, wife of the deceased, had departed for the defendant's home, he left his friends, saying that he was going for his wife and that he would return in a little while. He thereupon drove up to his house and not finding his wife at home, he immediately returned to the cafe, by another route, and there he found his wife who had returned, with Mrs. Loveless, during his absence. An oyster supper, at the defendant's house, was then arranged between the parties and before going to defendant's home they picked up Bart Harberson, who had been with the defendant and the deceased all of the afternoon, and also Miss Ethel Pate. The four men who had been together during the afternoon had been drinking, and, according to the testimony when they reached the house of the defendant, Harberson went directly into the living room, sat down, and went promptly to sleep. All of the parties went into the defendant's house upon their arrival. Loveless went into the living room and turned on the radio, while the defendant and the ladies of the party proceeded to prepare supper. It took some time to get the supper ready, but this was finally accomplished and the entire party, with the exception of Harberson, sat down at the table and ate their supper. Everybody was then, apparently, in a good humor and friendly with each other. While they were eating supper, or at some time during the evening, defendant was teasing, or joking, his wife about where she had been during the afternoon. She told him that she and Mrs. Loveless went to town by a certain route, which he contradicted and said that for all he knew they might have been out with some men. At this point Mrs. Loveless, fearing that her husband might not understand that defendant was simply teasing his wife, intervened in the conversation and undertook, herself, to describe the route she and Mrs. Robinson took when they walked down town. Here, so it appears from the testimony, Loveless began to argue with his wife about the same matter. It appears from the testimony that all of this talk and raillery was mere banter and in good natured fun. And yet it was out of this perfectly harmless incident that the deplorable tragedy, in which Loveless lost his life, was made to emerge. As to this matter Miss Ethel Pate, a witness for the State, testified as follows: "I didn't hear it if anybody had said anything out of the way after we started supper until Collins and his wife got to arguing about which way the women came to town. That was the first thing that started the row. Collins and his wife didn't appear to be mad. Charlie (the defendant) was laughing and going on. Didn't any of them appear to be mad. When Collins' wife told him which way they went Charlie said 'you didn't go that way, we went that way and didn't see you.' He said he didn't meet them or overtake them. When Charlie said that Collins came running in there (the living room) and said 'you called my wife a liar' and started hitting Charlie and knocked him down in a chair and jumped on him * * *. When Collins first hit Charlie Elois (Mrs. Loveless) jumped up from the table and ran out of the back door. I say they went from the place in the living room, where Collins knocked him down, into the bed room, but I didn't see them in there. Charlie was in front and he was running and the other man (Mr. Loveless) was running after him. When they ran in this room here (meaning the bed room) I ran out and then went up to this second house and called Mr. Fielding and tried to get him down there."

It may be here said that there was evidence in behalf of the defendant which tended to show that Loveless did not make any outbreak for the defendant immediately after the defendant said "you didn't go that way, we went that way and didn't see you" and "we didn't meet you or overtake you," but that when the defendant made this remark Mrs. Loveless, who was standing by her husband, whispered something into his ear, and then Mr. Loveless ran in on the defendant. It may also be here further noted that the testimony of Mr. Fielding and of his wife, who were witnesses for the defendant, tended to show that after Mrs. Loveless and Miss Pate came to their home, while the difficulty between the deceased and the defendant was in progress, they both were there on these premises or in the street in front of the Fleming home until the shot was fired from which Mr. Loveless died.

The evidence further shows, without substantial dispute, that the deceased knocked the defendant down on his bed in defendant's bedroom, and that it was here that the defendant got his pistol. In the struggle in the bedroom the defendant's bed was broken down. The defendant struck the deceased with his pistol and in some way got free from the deceased and ran into the kitchen. The deceased followed the defendant into the kitchen and knocked him down again, or rather knocked him over on the hot stove, burning him, and as the defendant ran out of the kitchen the deceased seized a hatchet and threw it at the defendant and chased him back into the living room where he cornered the defendant and as he was here advancing on the defendant the latter shot the deceased in the leg and stopped him. The deceased fell to the floor and asked the defendant not to shoot him again, and the defendant immediately replied that he did not intend to shoot any more and that he would go and get a doctor to attend him. The testimony shows that the defendant did immediately go for a doctor and procured one to attend the deceased at the earliest possible moment. Unfortunately, so the testimony indicates, the pistol wound severed an artery in Loveless' leg and he died before the physician could reach him.

After a very careful consideration of all the evidence set out in this record, it is the opinion and judgment of this court that the defendant was free from fault in bringing on the difficulty in which the deceased lost his life, and that the defendant, in the light of the fury of the attack made upon him by the deceased and of the evident, imminent and impending danger to the life of the defendant, or of his suffering great bodily harm at the hands of his powerful and maddened assailant, who some of the evidence tends to show was a former prize fighter, was fully justified, under the rule of self defense, in shooting the deceased. The evidence shows that the deceased was actuated by an unreasonable and vicious rage against the defendant and that he either intended to kill the defendant, or to give him an unmerciful and brutal beating in his own home. The...