Robinson v. State

• Decision Date: 06 February 1908
• Citation: 155 Ala. 67,45 So. 916
• Parties: ROBINSON v. STATE.
• Court: Alabama Supreme Court

45 So. 916

155 Ala. 67

ROBINSON v. STATE.

Supreme Court of Alabama

February 6, 1908

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

H. S Robinson was convicted of manslaughter in the first degree and he appeals. Affirmed.

The court in his oral charge said to the jury: "No matter what a man's peril may be, gentlemen of the jury, and how unable he may have been to retreat from that peril, if he voluntarily placed himself in the condition that brought about that peril, either by work or action of his, he cannot justify it. He would be guilty of some degree of unlawful homicide. That does not mean, gentlemen, that a man shall not approach another in a peaceful and quiet manner for the purpose of adjusting a difficulty, if he had no thought or purpose or intention of provoking a difficulty. A man has the right to go to another in a peaceful manner for the purpose of adjusting the difficulty, and that of itself, the mere reference to another difficulty, does not deprive him of the right of self-defense. You are the judges of that, and you alone. He has no right to arm himself and go to another under the guise of explaining a previous difficulty, and under that guise provoke another man, and then take advantage of that and slay him. At the same time, he would not be at fault if in a peaceful manner, and without any purpose to provoke another, he approaches him. If, then, the other commits an assault, or attempts to do so, he would still have the right of self-defense. And the question as to whether or not he was at fault is for you to decide under the evidence in this case."

At the request of the state the following written charges were given: "(1) I charge you, gentlemen of the jury, that if the defendant was not free from all fault in bringing on the fatal difficulty, he cannot be acquitted on the plea of self-defense. (2) If you believe from the evidence beyond all reasonable doubt that the defendant entered into the fatal difficulty willingly, he cannot invoke the doctrine of self-defense. (3) The essential elements of self-defense are first, that the defendant must be free from fault himself, he must not say or do anything for the purpose of provoking a difficulty, nor be disregardful of the consequences in this respect of any wrongful word or act; second, there must be a present, impending peril to life, or danger of great bodily harm, either real or so apparent as to create the bona fide belief of an existing necessity; third, there must be no convenient or reasonable mode of escape by retreat or by declining the combat. (4) If the jury believe from the evidence in this case beyond a reasonable doubt that the defendant approached the deceased at the time of the fatal difficulty, and by his conduct or word provoked or commenced the fatal difficulty, he cannot invoke the doctrine of self-defense. (5) If the jury believe from the evidence beyond a reasonable doubt that the defendant by his acts or words on the occasion of his fatal difficulty intended to provoke the deceased to make a demonstration against him, intending then to kill him, it would be murder, and you should so find your verdict. (6) If the jury believe from the evidence in this case beyond a reasonable doubt that the defendant spoke to the deceased about a previous difficulty, intending to bring on a fight or conflict, he cannot be acquitted under the law."

The defendant requested the following charges in writing, which were refused:

"(1) If the jury have a reasonable doubt, generated by all the evidence in this case, as to whether the defendant acted in self-defense or not, they should acquit him. (2) The burden is not on the defendant to establish self-defense by a preponderance of the evidence; but, if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, they must find him not guilty. (3) If the jury believe that juries heretofore have shirked their duty, yet, on account of that, you should not convict the defendant, unless you believe that he is guilty beyond a reasonable doubt."

The bill of exceptions then states that the attorney for the prosecution, over the objection and exception of the defendant, read to the jury the following extract from page 28 of volume 60 of the Alabama Reports (Mitchell v. State), beginning with the expression, "This grade of crime," and ending, "It is in its lax and falsely merciful administration," and also read to the jury, over the objection and exception of the defendant the following extract from the opinion in the case of Ex parte Nettles, 58 Ala. 268, beginning with the expression, "We cannot too strongly express," and ending with the expression, "If not intensified."

Bowman, Harsh & Beddow, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL J.

The appellant was indicted and tried on the charge of murder, was found guilty of manslaughter in the first degree, and was sentenced to a term of five years' imprisonment in the penitentiary. From the judgment of conviction and sentence the present appeal is prosecuted.

During the trial numerous exceptions were taken to the rulings of the court on the admission and exception of evidence. These numerous exceptions do not require treatment and consideration in detail, since many of them raise similar questions and may be grouped together and disposed of on general propositions. A number of exceptions were reserved to the refusal of the court, on the objection of the state, to permit the defendant on the cross-examination of the state's witnesses to show the physical strength and size of the deceased. At the time of these rulings no evidence had been introduced or offered tending to show self-defense. This evidence, therefore, sought to be introduced by the defendant upon the cross-examination of the state's witnesses, was immaterial and inadmissible when objected to. The same is true as to the physical condition of the defendant. In the absence of evidence tending to show self-defense, evidence...