Terry v. State

• Decision Date: 22 June 1920
• Docket Number: 8 Div. 752
• Citation: 86 So. 127,17 Ala.App. 527
• Parties: TERRY v. STATE.
• Court: Alabama Court of Appeals

86 So. 127

17 Ala.App. 527

TERRY v. STATE.

8 Div. 752

Court of Appeals of Alabama

June 22, 1920

Appeal from Circuit Court, Lawrence County; Robt. C. Brickell Judge.

Lum Terry was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Defendant having voluntarily entered into a difficulty with deceased held not entitled to the benefit of the law of self-defense.

The following is the charge given for the state:

If you believe from the evidence in this case beyond a reasonable doubt that the defendant entered into the fight willingly, that resulted in the death of John Graham, then the defendant cannot invoke the doctrine of self-defense.

The following charges were given for the defendant:

(4) The court charges the jury that, if they are reasonably satisfied from the evidence in this case that at the time the defendant fired the fatal shot he was in imminent danger of losing his life or suffering grievous bodily harm at the hands of the deceased, or reasonably appeared to be in such danger and honestly fired the fatal shot under such belief then your verdict should be for the defendant, unless you are satisfied beyond all reasonable doubt from the evidence in this case that the defendant entered the fight willingly, or was at fault in bringing on or encouraging the difficulty and I charge you as a matter of law that, if you are reasonably satisfied from the evidence that he was in danger as I have just defined, or reasonably appeared to be in such danger, then to fire the fatal shot in honest belief of such danger, with an intent and fixed purpose to kill, would not constitute entering the fight willingly, so as to cut off his right of self-defense, as I have defined the ingredients of self-defense to you; and I further charge you that if what he said or did at the time prior to the fatal shooting was not wrongfully said or done with a view of bringing on or encouraging the difficulty, and, further, if said words conduct, or deeds of whatever kind did not in fact bring on the difficulty, then such acts and conduct would not be such as to render him at fault in bringing on or encouraging the difficulty, in such manner as to cut off his right of self-defense, as I have defined the same to you.

(5) Before words, conduct, or deeds of the defendant can be said, within the meaning of the law, to encourage or provoke the difficulty, that must have been intentionally said or done by the defendant, and his words, conduct, or deeds must have brought on or encouraged the difficulty.

(6) It is the law that defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by the deceased, and if, on considering the evidence or any part of it, when considered with the whole evidence, you have a reasonable doubt as to whether defendant was justified in taking the life of deceased in defending himself from such assault, it will become your duty to acquit him.

(44) It is not necessary, under the evidence in this case, that defendant should have been in actual danger of death or great bodily harm at the time he killed 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 appearance of things at the time, taken in the light of all the evidence, and had the right to interpret the conduct of deceased in the light of any threat or threats that the evidence proves deceased to have made against the defendant. If the circumstances attending the killing were 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 believed such to be the case, then he had a right to shoot deceased in his own defense, although as a matter of fact he was not in actual danger and retreat would not have endangered his personal safety; and if the jury believe that the 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 should acquit the defendant.

(45) If defendant shot deceased under a bona fide belief that he was in impending danger of life or limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.

(47) If you believe from the evidence in this case that the deceased made a sudden, felonious, murderous attack on the defendant, in such manner as to raise in the mind of a reasonable man the belief, and the defendant did believe, that he was in imminent danger of great bodily harm at the time he fired the fatal shot, then the defendant was under no obligation to retreat and was justified in taking the life of the deceased, provided he was without fault in bringing on the difficulty, and the burden of proof is on the state, in such a case, to show that the defendant was at fault in bringing on the difficulty.

The following charges were refused to the defendant:

(8) The court charges the jury if they are reasonably satisfied from the evidence in this case that the defendant was without fault in bringing on the difficulty, and at the time of the firing of the fatal shot the defendant honestly and reasonably believed the deceased was about to make a murderous attack upon him in such a manner as to immediately imperil his life, the defendant was under no duty to retreat and was authorized, under the law, to stand his ground and repel such murderous attack by taking the life of the deceased, if it reasonably appeared and he honestly believed it to be necessary to preserve his own life or his body from grievous harm.

(10) I charge you, gentlemen of the jury, that, in order to constitute putting the defendant at fault in bringing on or encouraging the difficulty, his words, conduct, or deeds must have been a contributing cause of the difficulty; it is not enough, as a matter of law, that such words, conduct, or deeds were calculated to encourage or bring on the

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