Rutledge v. State

• Decision Date: 27 January 1890
• Citation: 7 So. 335,88 Ala. 85
• Parties: RUTLEDGE v. STATE.
• Court: Alabama Supreme Court

7 So. 335

88 Ala. 85

RUTLEDGE v. STATE.

Supreme Court of Alabama

January 27, 1890

Appeal from circuit court, Madison county; H. C. SPEAKE, Judge.

James Rutledge was convicted of murder in the second degree, and sentenced to the penitentiary for 43 years. The killing occurred on the evening of February 20, 1889, as deceased David Donagan, was about entering a barber shop, having his hand on the door-knob when the fatal shot was fired; and having entered, and shut the door behind him, defendant fired two more shots through the window. Deceased died, from the effects of the wound, on the third day afterwards. It was shown that the parties had had a fight on the morning of the same day, at the store where defendant was employed, and two or more former difficulties, and had been on unfriendly terms for some time; that on the evening of the difficulty, and just before it, defendant had followed deceased down the street, and accosted him, just as he stretched out his hand to open the door of the barber shop, saying: "Dave, you hit me." According to the witnesses for the state deceased made no reply, but turned towards the door, when defendant at once fired. But the defendant, testifying in his own behalf, said that the deceased replied, "No, and I intend to kill you now," at the same time drawing a knife. One witness testified that when the shot was fired the parties were not more than two feet apart; and another, that defendant was standing about the middle of the sidewalk while the deceased had his hand on the door-knob, or stretched out towards it. The state adduced evidence of former threats made by defendant against deceased, and declarations of ill feeling; and defendant adduced evidence of recent threats made by deceased against him which had been communicated to him before the killing. In this connection, defendant reserved several exceptions to the rulings of the court on the admissibility of evidence, as follows: Defendant, while testifying as to his fight with the deceased on the morning of the day of the killing, was asked by his counsel to "state whether or not you were hurt in that difficulty by the deceased, and to what extent." The court sustained an objection to this question, and defendant excepted. Ben Scott, a witness for the defense, testified to the particulars of certain difficulties between the parties. The court sustained objection to this evidence relating to the particulars of the difficulties, and defendant excepted. Other exceptions were reserved, to the exclusion of evidence of uncommunicated threats by the deceased against defendant. Defendant asked the following charges, among others, in writing, and duly excepted to the refusal of each: "(1) At the time the defendant fired at the deceased, if the jury believe that the circumstances were such as to create in his mind a reasonable belief of impending necessity, these circumstances are to be ascertained by the jury, and they may consider the condition of the party killing, as well as the party slain; and, if they find the circumstances such as to create in the mind of the accused a reasonable belief that this danger was imminent, then the law would say that he might strike in his own defense. (2) If the jury believe from the evidence that the defendant did not provoke the difficulty, and that the deceased had previously indicated hostility to the defendant by different acts, and had made threats against the life of the defendant which had been communicated to the defendant, then the jury can look to these threats of hostility in determining whether the defendant, when he fired the fatal shot, acted under the reasonable and honest conviction that it was necessary for him to fire in order to save his own life, or to prevent great bodily harm." Defendant appeals.

W. L. Martin, Atty. Gen., for the State.

McCLELLAN J.

We understand the rule in respect to the admission of evidence on the part of a defendant on trial for murder, of previous threats by, or difficulties with, or ill feeling on the part of, the deceased to be this: that when any phase of the testimony would, if believed, present a case of self-defense, then the accused, using this aspect of the facts adduced as a predicate therefor, may go further, and strengthen it by showing that the deceased had threatened him, or entertained ill feeling towards him, or that there had been difficulties between them; and a like doctrine obtains with respect to evidence of the violent character of the person slain. Or, to state the principle in a more concrete form, the evidence adduced must have some tendency to establish the constituents of the right to destroy life that life may be preserved, which are that the accused was without fault in bringing on the fatal...