Sanders v. State, 6 Div. 61

CourtSupreme Court of Alabama
Citation243 Ala. 691,11 So.2d 740
Docket Number6 Div. 61
Decision Date14 January 1943

Rehearing Denied Feb. 18, 1943.

Appeal from Circuit Court, Jefferson County; John C. Morrow Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

The following charges were refused to defendant:

"14. The Court instructs the jury that, unless the evidence offered by the prosecution in this case against the defendant should be such as to exclude every reasonable supposition but that of his guilt as charged in the indictment, then, the jury should find the defendant not guilty."

"35. I charge you, gentlemen of the jury, to find the defendant not guilty unless the evidence excludes every reasonable supposition but that of his guilt."

"39. The jury are instructed that, the defendant must be presumed to be innocent until his guilt is fully established by the evidence beyond a reasonable doubt, and this presumption of innocence prevails throughout the trial; and, it is the duty of the jury if possible to reconcile the evidence with this presumption."

"45. The court charges the jury that, before the defendant can be convicted in this case, it is indispensible that the existence of an intent on the part of defendant to commit the offense charged to the defendant must be proved by the prosecution beyond a reasonable doubt and to a moral certainty; and, if the prosecution has failed by the evidence of the case, after consideration be fairly given by the jury to the whole of the evidence, to so establish such intent of defendant the jury should find the defendant not guilty."

"50. The Court charges the jury that, if the circumstances surrounding the acoused who is charged with a felony should have created in his mind a reasonable belief of his own imminent peril, and of an urgent necessity to take the life of his assailant as the only apparent alternative of saving his own life, or else of preventing the infliction of great bodily harm. Such peril must be, to all appearances, present and immediate, and the belief in the necessity well founded and honestly entertained, and of these facts the jury must be the judge."

"51. The Court instructs the jury that, one may oppose another who is attempting to perpetrate a felony to the extinguishment, if need be, of the felon's existence, conditioned that the accused be free from fault in bringing on the difficulty and that retreat, on the part of accused, would have increased his danger."

"52. The Court charges the jury that, the right to kill and adversary in order to prevent the perpetration of crime should depend more upon the character of the crime and the manner of its attempted perpetration, than upon the degree of punishment attached by law."

"53. The Court charges the jury that, if you find from the evidence of this case defendant was free from fault in bringing on the difficulty, was an unwilling participant therein, and that he shot the deceased under a bona fide belief that his life was in danger, and the defendant had, under all the circumstances, a reasonable and well founded cause to believe that he was in imminent danger at the moment the fatal shot was fired, then, he cannot be convicted."

J.B. Ivey, of Birmingham, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

LAWSON, Justice.

This appeal is from a conviction of murder in the second degree.

The defendant, Henry Sanders, was tried on an indictment charging murder in the first degree, and was convicted by the jury of murder in the second degree, and his punishment was fixed at forty years' imprisonment in the penitentiary.

That the defendant shot Alf Arnold, the deceased, with a pistol and that Arnold died as a result thereof is without dispute. The defendant pleaded self-defense.

Several persons who witnessed the shooting, and the officers who arrived at the scene shortly thereafter, testified for the State. Their testimony may be summarized as follows:

During the early hours of the morning of December 7, 1941, the deceased and the defendant "had some words" at Bush's Cafe, a cafe for colored people, located on 4th Avenue between 25th and 26th Streets, Birmingham, Alabama. Thereafter, on the same morning, sometime between two and three o'clock A.M., the deceased went to the Blackhawk Cafe, situated on the corner of 4th Avenue and 26th Street, only a short distance from Bush's Cafe. Within thirty minutes after the deceased entered the Blackhawk Cafe, and while he was telling a friend that he and the defendant had "had some words" at Bush's Cafe, Sanders came into the Blackhawk, with a pistol in his hand, which he pointed in the direction of the deceased, admonishing others to "stand back," as he was going to kill Arnold. Arnold and those standing near him scattered in an effort to obtain cover, Arnold trying to hide behind one Boykin Williams, who pulled away and reached safety behind a counter on the opposite side of the room. The defendant fired several shots, one hitting Arnold on the left side of his neck, approximately halfway between his chin and his collar bone, breaking his neck and causing his death. The deceased had no weapon in his hand when Sanders came into the Blackhawk Cafe and had made no effort to injure Sanders in any way at the time the fatal shot was fired. After the deceased fell, a "switch blade" knife with blood on it was found about eight or ten inches from his head. He fell on his face with his left arm under him and with his right arm outstretched. According to the testimony of one of the investigating officers, a cigarette was between the first and second fingers of the outstretched right hand, while another officer testified that the cigarette was near the right hand but not in it. One witness for the State testified that the knife was found under the deceased when his body was moved. The defendant made no effort to flee, but was in custody at the "City Hall" within a short time after the shooting, where he was examined and no evidence of any wound or cut place was found on him.

The defendant testified in his own behalf. His version of what transpired is substantially as follows:

That he and the deceased had an argument in Bush's Cafe during the early hours of the morning of December 7, 1941, and the proprietor ordered them to leave. That after they had left the cafe the deceased ran after him, cursing and threatening to cut his throat if he caught him, but Sanders evaded the deceased after he had been chased to 25th Street, about one-half block from Bush's Cafe. That he saw Arnold go south on 25th Street in the direction of 3rd Avenue, whereupon he (Sanders) went in the opposite direction on 25th Street, finally returning to 26th Street by means of an alley and then proceeded to the Blackhawk Cafe, not knowing that the deceased was there. That as he entered the Blackhawk Cafe, the deceased started toward him, brandishing an open knife in a threatening position, saying, "Here is that ---now." That he, the defendant, had a pistol in his overcoat pocket, which he had with him even while he was being chased by the deceased. That he pulled the pistol from his pocket, pointed it at the deceased, and told him to "get back," but that the deceased continued to advance toward him holding his "switch blade" knife in a "raised stabbing position." That the first time he pulled the trigger the pistol snapped and that the first shot which was fired missed the deceased, who continued to advance toward him. That he shot at the deceased three times in all, with either the second or third shot killing the deceased. That after he saw that he had hit Arnold he backed out of the door through which he had entered, and proceeded to the police station, after going by his home to leave his pistol with his wife.

The defendant's testimony as to what transpired at Bush's Cafe was corroborated to a large degree by two witnesses who testified in his behalf. According to their testimony, the defendant and the deceased were asked to leave the cafe by the proprietor, whereupon the deceased ran after the defendant, threatening to cut his throat with a knife which he held in his hand if he caught him. Neither of these witnesses were present at the Blackhawk Cafe at the time of the fatal shooting. The testimony of another witness, called by the defense, was in most respects in accord with the testimony of the witnesses for the State. He testified that he was present in Bush's Cafe when the deceased and the defendant had an argument, but that he did not hear the deceased curse the defendant nor did he see the deceased with a knife, although he did see the deceased run after the defendant. He further testified that he was in the Blackhawk Cafe at the time of the shooting and that the defendant entered the cafe with a pistol in his hand and said to the deceased, "I ought to kill you"; that the defendant started back out of the cafe as if to leave, but turned and said "you all move back," and then began to fire; that he did not hear or see the deceased threaten the defendant in any way.

Refused charges Nos. 11, 12, 23, 24, 25 and 26 were requests for the affirmative charge as to all degrees of homicide. They were correctly refused. The evidence on every material inquiry was in sharp conflict except as to the fact that the defendant shot the deceased. To hold that the defendant in this case was entitled to the general affirmative charge would be but to ignore entirely the evidence for the State and that of defense witness Tom Stevens, who corroborated to a large degree the testimony of witnesses for the State. The State insisted that the killing was unprovoked, unjustified, and hence unlawful, and offered testimony to sustain this insistence. On the...

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