Thomas v. State

• Decision Date: 17 June 1915
• Docket Number: 336
• Citation: 13 Ala.App. 50,69 So. 315
• Parties: THOMAS v. STATE.
• Court: Alabama Court of Appeals

69 So. 315

13 Ala.App. 50

THOMAS v. STATE.

No. 336

Court of Appeals of Alabama

June 17, 1915

Rehearing Denied July 19, 1915

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Henry Thomas was convicted of manslaughter, and he appeals. Affirmed.

The facts sufficiently appear from the opinion. The following charges were refused the defendant:

(1) If at the time in question the defendant was a guest or visitor in the home of Mary Ann Scott, he was under no duty to retreat, if deceased undertook to shoot him, provided defendant was free from fault in bringing on the difficulty.

(2) While at the home of his aunt as a guest, the defendant had the right to resist any attack, assault, or trespass on the home, or on or toward the defendant in person, using no more force than necessary.

(3) If while at the home of his aunt defendant shot deceased and defendant was free from fault in bringing on the difficulty, and if at the time of the shooting deceased was undertaking to shoot defendant, and defendant then saw and knew this, then defendant had the right to defend himself by shooting deceased. If it then and there reasonably appeared to defendant to be necessary so to do in order to avoid great bodily harm, under circumstances defendant was under no duty to retreat.

(4) Under the law and facts in this case the defendant had every right he would have had in his own home, provided he was a guest or visitor in the home of Mary Ann Scott at the time in question.

(5) On the law and the facts of this case the defendant was under no duty or obligation to retreat, provided he was free from fault in bringing on the difficulty, and at the time of the shooting defendant was a guest or visitor at the home of Mary Ann Scott.

(6) If defendant shot to preserve or protect his own life was free from fault in bringing on the difficulty, and at the time was a guest or visitor at the home of Mary Ann Scott then he should be acquitted.

(7) If at the time he shot defendant was in danger of death or great bodily harm, and was free from fault in bringing on the difficulty, and did not willingly enter into the difficulty, and was a visitor or guest at the home of Mary Ann Scott, then he should be acquitted.

C.D Carmichael, of Geneva, for appellant.

W.L. Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

BROWN J.

The homicide for which the appellant was tried and convicted occurred at the home of Mary Ann Scott, an aunt of the defendant, and the evidence adduced on the trial showed that another woman, whose name was Savannah, lived in the house with Mary Ann, and that the defendant visited them frequently, and, while there is no positive proof of the fact, the evidence was sufficient to afford an inference that defendant was there on the implied invitation of the owner of the house, or by prearrangement with some of its lawful occupants, and therefore was a guest at the house. If the defendant was a guest of the owner or occupants of the house, there by prearrangement with them or on their invitation, while in the house in that capacity the law armed him with the right to defend himself against an unlawful assault from outsiders, he being free from fault, and to employ all necessary force to protect his own life or his person from grievous harm. For this purpose and under these circumstances, he was armed with the same rights of self-defense as if he had been the owner of the house, as to all persons except its lawful occupant; in other words, to that extent this house was his castle for the purpose of defense, and if without his fault he was assaulted there by an intruder, the law imposed on him no duty to retreat therefrom, but he had the right to stand his ground and defend himself even to the taking of the life of his assailant. Crawford v. State, 112 Ala. 1, 21 So. 214; Jacobs v. State, 146 Ala. 103, 42 So. 70; Carroll v. State, 23 Ala. 28, 58 Am.Dec. 282; Watkins v. State, 89 Ala. 82, 8 So. 134.

This doctrine only applies to the house, and the yard is not within its protection. In the case of Watkins v. State, supra, the court said:

"Charge 8 asserts that, if a man be assailed in his yard, and can avoid the necessity of killing by retreating into his house, he is not required to do so, but may stand and kill. This is not the law."

And in the same case:

"One assaulted in his house need not flee therefrom. But his house is his castle only for purposes of defense. It cannot be turned into an arsenal for the purposes of offensive effort against the lives of others. It is a shelter, but not a sally port. A man may stand his ground there, and kill all comers who are, without fault on his part, about to take his life, or to do him great bodily harm. But, if he leaves its shelter, to encounter a danger beyond its precincts, he is in no better attitude before the law than if he had come from any other place, and voluntarily entered upon a combat, from the peril of which he was secure but for his own act. It is immaterial that after he has armed himself and emerged from his house he encounters a necessity to kill to save his own life. Such necessity is, in legal contemplation, of his own creation, and he cannot justify under a necessity which his own fault and wrong has contributed to produce." Watkins v. State, supra; Sanford v. State, 2 Ala.App. 81, 57 So. 134; Gibson v. State, 126 Ala. 59, 28 So. 673.

"The reason of the rule is said to be that 'the law regards a man's house as his castle, or, as was anciently said, his tutissimum refugium, and, having retired thus far, he is not compelled to yield further to his assailing antagonist. *** When he has reached this refuge, he may stand at bay, and may turn on and kill his assailant, if this be apparently necessary to save his own life; nor is he bound to escape from his house in order to avoid his assailant. Jones v. State, 76 Ala. 8, 16.' " Watts v. State, 177 Ala. 31, 59 So. 270; 1 Hale's P.C. 486; Storey v. State, 71 Ala. 329.

In McGhee v. State, 178 Ala. 4, 59 So. 573, the court, speaking by Anderson, J., thus applied this doctrine:

"Charges A, B, and C invade the province of the jury. They assume that the defendant was under no duty to

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