Smith v. State

• Decision Date: 08 May 1913
• Citation: 183 Ala. 10,62 So. 864
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

62 So. 864

183 Ala. 10

SMITH v. STATE.

Supreme Court of Alabama

May 8, 1913

Rehearing Denied June 19, 1913

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

Jay Smith was convicted of first degree murder, and appeals. Reversed and remanded.

McClellan and Somerville, JJ., dissenting in part

The defendant was indicted and tried for killing one Will A Patterson with a pistol. The witness Cox testified that there had been trouble between deceased and defendant, and that he had been with defendant for about 30 minutes before the shooting took place, but that just before the shooting took place but that he had gone into the drug store, but that he heard the defendant in a seemingly friendly manner ask deceased to come around behind the store, that he wanted to see him a minute, and heard deceased decline to go with him into the dark, but told him that if he wanted to see him to come into the light in the drug store; that Mr. Felix Walker then said to the deceased, "Come on, Patterson, and I will go with you," Walker being with Smith at the time and a few minutes afterwards the pistol fired several times and witness saw Patterson reel and fall on the sidewalk; that Walker was standing between the two, with his right side to Patterson and his left side to Smith; and that Walker was shot in the mêlée.

Testifying for the state, Felix Walker said: "I was with Smith at the time Patterson was killed at night, at or about the corner of Martin's drug store in Alabama City. About the time I got to the corner Smith came up, but I did not see Patterson. A little later I saw Patterson come out of the barber shop, and come across and start into Martin's drug store, and Smith said to him, 'Pat, I want to see you a minute; come out in the street.' Patterson replied 'Come on in the light,' and Smith told him to come on down the street, but Patterson turned and walked back to the door, and I said, 'Yes,' or 'I will go with you,' I don't remember which, and we stepped out on the sidewalk, and Mr. Smith pulled up his coat and turned round and said, 'You see I ain't got any gun,' and Patterson says, 'Yes, Jay, you have got a gun.' Witness saw the gun as Smith turned around, and walked over to Smith to get him to go off. I told him to come and let's go off. Patterson said nothing, and I don't think Smith said anything. Smith then threw his hand on his gun, and I threw my hand to his gun, and I threw my hand to his gun, and said to him, 'Don't take your gun out.' He jerked twice, and the gun fired and struck me in the leg, and I pitched out in the street, and Smith got his gun out of his pocket, but Patterson drew no gun. After I was shot I was unconscious. and when I came to myself I was lying with my head in Smith's lap."

The witness was asked on cross-examination: "You saw the pistol when Smith turned around?" and replied in the affirmative. The defendant then asked, "Patterson could have seen it?" The state objected to the question, and the objection was sustained, and defendant excepted,

The following charges were refused to defendant:

(1) "If the evidence of the state consists of the statement of witnesses of the truth of which the jury have a reasonable doubt, you cannot convict the defendant."

(2) "The court charges you that, if you are reasonably doubtful as to the proof in this case of any material allegation of the indictment, you must acquit the defendant."

(6) "If the jury believe from the evidence that the state's witness Walker was drunk or under the influence of liquor at the time of the shooting of Patterson, then the jury may disregard the testimony of said Walker entirely."

(7) "The court charges the jury that if you believe from all the evidence in this case that it was communicated to the defendant prior to the difficulty that deceased wanted to see him at or near the place where he was killed, and defendant went to said place under the belief that deceased was desirous of seeing him there, and for no hostile or other improper purpose, and did approach the deceased in a peaceable and orderly manner, and was without fault in bringing on the difficulty with the deceased, and the deceased stated to the defendant in substance that he did not want to talk to him, that defendant had a pistol, and defendant stated to the deceased that he did not have a pistol, and deceased immediately started to draw and did draw a pistol from his person and fired upon or in the direction of defendant, and it reasonably appeared to defendant at the time he could not retreat with reasonable safety to himself, and it further reasonably appeared that he was in imminent danger of life or limb at the hands of deceased, and under such circumstances the defendant fired upon and killed the deceased, then I charge you the defendant had violated no law, and it will be your duty to return the following verdict: 'We, the jury, find the defendant not guilty.' "

(8) "If you believe from the evidence that defendant, in a peaceable manner, asked deceased to come around the corner, that he wanted to see him, and deceased, on going around the corner, stated to defendant that he had a gun on him, and that defendant pulled up his coat and stated to deceased that he did not have a pistol, and deceased then started to draw his weapon, and it reasonably appeared to the defendant that he was in serious danger to life or limb, and that he could not retreat with reasonable safety, the jury should acquit the defendant."

(9) "If you find after a consideration of all the evidence that deceased was a man of man of violent, dangerous, or bloodthirsty general character, and had made threats to take the life of defendant before the moon went down that night, and these threats were communicated to defendant before the shooting, and defendant was free from fault in bringing on the difficulty, and that at the time he fired the fatal shot it reasonably appeared to him that he was in imminent peril of life or limb at the hands of deceased, and there appeared no reasonable mode of escape from such impending peril, then I charge you the defendant had the right to shoot to kill, and, further, to act more readily upon appearances than if deceased had been a man of peace and quiet in the community in which he lived."

(10) "If defendant was free from fault in bringing on the difficulty, he was under no duty to retreat, unless you believe that he could have retreated without increasing his danger or with reasonable safety. It is not necessary, under the evidence in this case, that defendant should have been actually in danger of death or great bodily harm at the time he killed the deceased, or that retreat would have really increased his peril in order for him to have been justified in shooting the deceased. He had the right to act on the appearances of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of deceased in the light of any threats that the evidence proves deceased to have made against the defendant. If the circumstances attending the killing are such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believes such to be the case, then he had a right to shoot the deceased in his own defense, although, as a matter of fact, he may have been in no actual danger, and retreat would not have endangered his personal safety; and if the jury believe that defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the state, and if not shown the jury must acquit."

W.J. Boykin and W.J. Martin, both of Gadsden, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

SAYRE J.

Defendant was convicted of the murder of one Patterson, and sentenced to suffer death. At his trial defendant reserved a great number of exceptions to adverse rulings on questions of evidence. They have been duly considered, but it has been found unprofitable to state them severally, and impossible to do so within reasonable limits. We have, however, stated such of them as seem to involve questions of merit, and perhaps some besides.

Dr. Burns, a witness for the state, was permitted to give his opinion as to the caliber of the pistol ball which caused the death of deceased. This he appears to have done from an inspection of the fatal wound. He was a medical man of ample general experience, but his observation of things in more immediate point had been meager, and possibly his opinion in that particular was not of much moment; but if it be conceded that his qualification as an expert in the matter of calibers was unsatisfactory, still, considering that defendant did not deny that he had caused the death of deceased by shooting him with a pistol, it is not perceived how the doctor's more intimate knowledge and better grounded judgment in the matter of wounds as demonstrating the caliber of the weapons by which they are inflicted could have been of any benefit to the defendant. In fact, the progress of the case developed no real reason for the question about the size of the bullet.

True as suggested, a third person also received an unintentional wound, and, under the circumstances, the question whether his wound came from the weapon in the hand of defendant or that in the hand of deceased would have been of significance as tending to show that deceased fired a shot, which some of the testimony seemed to deny, and possibly, also, in one event as tending to show who fired the first shot; but on that inquiry the mere caliber of the weapon inflicting the wound upon deceased...