Scruggs v. State, 3 Div. 979.

• Decision Date: 10 March 1932
• Docket Number: 3 Div. 979.
• Citation: 140 So. 405,224 Ala. 328
• Parties: SCRUGGS v. STATE.
• Court: Alabama Supreme Court

140 So. 405

224 Ala. 328

SCRUGGS v. STATE.

3 Div. 979.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Butler County; A. E. Gamble, Judge.

Dozier alias D. D., Scruggs was convicted of murder in the second degree, and he appeals.

Affirmed.

The refusal of requested instructions covered by those given held not error.

The testimony offered by the state tended to show a sudden and unprovoked shooting by defendant of Lloyd Smith, his brother-in-law; that as Smith drove into his premises defendant was sitting nearby with a shotgun; that Smith started to close the gate through which he had come and had his back to the defendant when defendant shot him twice with the shotgun, both loads taking effect in the thigh. The testimony offered by the defendant tended to show that Smith drove into his yard, spoke to defendant, then jumped out of his wagon, went into the house, and returned with a knife in his hand with which he made a sudden assault upon defendant whereupon defendant shot, while Smith was facing him.

The court orally charged the jury in pertinent part as follows:

"In weighing the testimony of the witnesses, gentlemen, you may consider what the witness said, his conduct, and his demeanor on the stand.

"You may consider any interest a witness has in the result of the case. If the defendant testified in his behalf you may consider the fact that he is the defendant.

"In other words you gentlemen take the testimony of the witnesses, apply your common sense and in an honest and impartial way determine what you believe to be the truth."

The following charges were refused to defendant:

"5. The court charges the jury that unless you are convinced beyond all reasonable doubt from the testimony that the defendant was at fault in bringing on the difficulty, you should find the defendant not guilty if from the evidence you are reasonably satisfied that the deceased advanced on defendant with open knife drawn in a threatening manner and the circumstances were such as to impress upon defendant as a reasonable man, the honest belief that he was about to suffer death or grievous bodily harm at the hands of the deceased and under these circumstances he took the life of the deceased."

"7. The defendant had a right to take the life of the deceased if at the time the deceased was shot by the defendant the deceased was making a felonious assault upon the defendant with an open knife, if you further believe from the evidence the defendant was free from fault in bringing on the difficulty in which the deceased lost his life, and you further believe from the evidence that the circumstances were such as to impress a reasonable man with the honest belief that the defendant was about to suffer grievous bodily harm at the hands of the deceased."

"8. The court charges the jury that if the deceased attacked the defendant with a deadly weapon, and the defendant was free from fault in bringing on the difficulty, then the defendant would be under no duty to retreat and would have the right to stand his ground and use such force as would repel the attack made upon him by the deceased, even to the taking of the life of the deceased, if such was necessary to repel such attack."

"9. The court charges the jury that if a person is attacked suddenly with a deadly weapon he is under no duty to retreat but may repel such attack with sufficient force as is necessary to prevent grievous bodily harm or death, and in this case if you believe from the evidence the defendant was suddenly attacked by the deceased with a deadly weapon, then the defendant had the right to repel such attack with sufficient force as was necessary to prevent the deceased doing him grievous bodily harm or inflicting death and if the defendant was without fault in provoking the attack and was in danger of suffering grievous bodily harm or losing his life at the hands of the deceased, or the circumstances were such as to impress a reasonable man with the honest belief that such danger existed, and under these circumstances the defendant fired the fatal...