Tolbert v. State
| Decision Date | 23 November 1943 |
| Docket Number | 2 Div. 721. |
| Parties | TOLBERT v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Dallas County; L.S. Moore, Judge.
Keith & Wilkinson and Pitts & Pitts, all of Selma, for appellant.
Wm N. McQueen, Acting Atty. Gen., and Benard F. Sykes, Asst Atty. Gen., for the State.
The brief filed here on behalf of appellant is one of the most thorough and painstaking, we believe, that we have ever examined.
As being prideful of the traditions of the legal profession it warms the cockles of our hearts to know that it was prepared and written by two of the ablest law firms of the circuit in which the case arose, under circumstances which we shall quote from the said brief, viz.: "The attorneys for the appellant were appointed by the Court to defend the appellant in the trial of her case in the Circuit Court of Dallas County, Alabama, as the appellant had no funds with which to employ attorneys to represent her; and the appellant's counsel think that a manifest injustice has been done to the appellant by the verdict of the Jury in this case; and we respectfully request the Court to consider carefully this brief being filed by counsel in appellant's behalf."
Surely we feel, here is strong evidence that the heart of the profession of which we are all members yet rings true.
But we'll come to the case: Appellant was indicted for the offense of murder in the first degree. Upon the trial under this indictment she was convicted of the offense of murder in the second degree, and her punishment fixed at imprisonment in the penitentiary for the term of ten years.
The facts involved, containing in part, possibly--as we shall later point out--a conclusion on the part of her counsel, are succinctly stated by said counsel in their able brief, as follows, to-wit:
The conclusion to which we referred is in the statement by learned counsel that "the deceased was attempting by force, against the will of appellant, to have sexual intercourse with her * * * and she killed him with a knife while he was attempting to forcibly ravish her."
What counsel should have stated, in order to have been in accuracy, was that "her undisputed testimony was to the effect that at the time of the fatal cutting the deceased was attempting by force, against the will of appellant, to have sexual intercourse with her."
And the law is that when one kills another by the intentional use of a deadly weapon, malice, design, and motive may be inferred without more, and are presumed, unless the evidence which proves the killing rebuts the presumption; and casts on defendant the burden of rebutting it, and to show self-defense or other justification, if he can. Cooley v State, 233 Ala. 407, 171 So. 725.
Here the uncontradicted testimony on behalf of the State was that appellant admitted an intentional killing with a deadly weapon. The burden was then upon her to prove that she was in imminent peril of life or serious bodily harm--about to be ravished,--and that she cut or stabbed deceased to protect herself. This was necessary to show self-defense, though she had no duty to retreat and was free from fault--if she was--in provoking the "difficulty." And, though the evidence of appellant may have been without dispute, its credibility was for the jury as well as its tendency to show imminent peril. They were not bound to accept it as true, nor to draw an inference of danger from the circumstances. Indeed, they might well have rejected it in their discretion. Since they did so, their verdict was well supported. Cooley v. State, supra. And perhaps we ought to say...
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Kemp v. State
...355, 102 So.2d 911; Fort v. State, 37 Ala.App. 91, 64 So.2d 604; Langley v. State, 32 Ala.App. 163, 22 So.2d 920; Tolbert v. State, 31 Ala.App. 301, 15 So.2d 745; Moore v. State, 31 Ala.App. 483, 18 So.2d 803; Austin v. State, 30 Ala.App. 267, 4 So.2d 442; Coates v. State, 29 Ala.App. 616, ......
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Davenport v. State, 6 Div. 597.
... ... motive may be inferred without more, and a defendant under ... such circumstances has the burden of rebutting such ... presumption by evidence tending to show self defense or other ... justification. Austin v. State, 30 Ala.App. 267, 4 ... So.2d 442; Tolbert v. State, 31 Ala.App. 301, 15 ... So.2d 745. Counsel's further ... [38 So.2d 287.] ... contention that the above quoted argument was an indirect ... reference to defendant's failure to testify is, in our ... opinion, palpably without merit ... It is ... further our opinion that ... ...