Underwood v. State
| Citation | 179 Ala. 9,60 So. 842 |
| Parties | UNDERWOOD v. STATE. |
| Decision Date | 19 December 1912 |
| Court | Supreme Court of Alabama |
On Application for Rehearing, February 6, 1913.
On Application for Rehearing.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
Ransom Underwood was convicted of murder in the second degree, and he appeals. Affirmed.
The facts sufficiently appear from the opinion of the court. The following charges were refused to the defendant:
(7) "The court charges the jury that, if, from all the evidence, you have a reasonable doubt as to whether it was necessary for the defendant to shoot the deceased to save his own life or prevent great bodily harm being done him, you will acquit defendant."
(33) "I charge you that defendant was under no duty to retreat, unless he could have done so without endangering his life or linib."
(10) "Unless you are convinced beyond all reasonable doubt and to a moral certainty, after considering all the evidence in this case, that the defendant was killed, and that he had a reasonable mode of escape, you cannot find the plaintiff guilty."
(11) "The burden of proof is on the state in this case to convince you, beyond all reasonable doubt, that defendant brought about the difficulty, and that there was a reasonable mode of escape by defendant; and, unless they have so convinced you, after considering all the evidence in this case, it is your duty to acquit the defendant."
(16) "I charge you that at the time the defendant fired the shot that killed deceased, if he reasonably believed that it was necessary for him to fire said shot to save himself from great bodily harm, and that the circumstances were such as to convince an ordinary man that he was in danger of great bodily harm at the hands of deceased, then you should acquit him, provided you find he is not at fault in bringing on the difficulty."
(30) "The defendant is entitled to the plea of self-defense in this case, unless the evidence convinces you, beyond a reasonable doubt, that defendant was at fault in bringing on the difficulty."
(40) "The burden of proof is not on the defendant to establish self-defense by a preponderance of the evidence but if there is a reasonable doubt in the minds of the jury as to whether or not the defendant was in imminent peril of his life or of great bodily harm at the time he shot, or that the circumstances were such as to raise in the minds of defendant a reasonable belief that he was in imminent peril of his life or of great bodily harm, and you are not cinvinced beyond a reasonable doubt that defendant was at fault in bringing on the difficulty, then you must acquit him."
(47) "If the defendant has proven to your reasonable satisfaction that, at the time he fired the fatal shot which killed deceased, there was a present, impending necessity to take the life of the deceased by the defendant, then the burden shifts to the state to prove, beyond a reasonable doubt, that defendant was not free from fault in bringing on the difficulty."
(12) "If you have a reasonable doubt that there was no reasonable grounds of escape, after the deceased began shooting at defendant, without increasing his peril, then it is your duty to acquit the defendant, after considering all the testimony in the case, provided you further believe from the evidence that defendant was free from fault in bringing on the difficulty."
(18) "There is no evidence that defendant was at fault in bringing on the difficulty."
(21) "If the defendant honestly believed that he was in danger of great bodily harm at the hands of deceased at the time he fired the shot that killed the deceased, the defendant was justified in acting upon such belief."
(27) "If the defendant shot the deceased under a bona fide belief that his life was in danger, he was under no duty to retreat, unless he could have done so without increasing his danger."
(24) "If there is one single fact proven to the satisfaction of the jury which is inconsistent with the defendant's guilt, the jury should acquit him."
(28) "Lack of motive on the part of defendant, when taken in connection with all the evidence in the case, may generate a reasonable doubt, and entitle the defendant to an acquittal."
(29) "You cannot find the defendant guilty, unless you believe him guilty beyond all reasonable supposition."
L. D Gray and Gunn & Powell, all of Jasper, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
DE GRAFFENRIED, J.
The defendant was indicted for murder in the first degree, and was convicted of murder in the second degree and sentenced to the penitentiary for 35 years.
The homicide was committed in the town of Cordova, where the deceased, William Tuggle, was shot by the defendant while the parties were in a gristmill. Both of the parties had carried corn to the mill at the above point, to be ground into meal. Both of them were, for several hours before the difficulty about upon the streets of Cordova, and the deceased on that day had a difficulty in the town of Cordova with the father of the defendant. In fact, the deceased, before the difficulty in which he was killed by the defendant, saw the town marshal of Cordova and had the father of the defendant arrested.
There was some evidence tending to show that the deceased was not upon friendly terms with the defendant, or with the father of the defendant; and there was also some evidence tending to show that the deceased and the defendant had each, prior to the day of the difficulty, made threats against the other.
It appears from the evidence that the deceased, a short while before the difficulty with the defendant, went to the mill and took a seat upon some sacks of corn, and was there, in that position, in conversation with the miller, when the defendant stepped into the doorway of the mill, at which time the fatal difficulty at once took place. The state claimed that shortly before the defendant went to the mill he took his pistol from his hip pocket, or from one of the inside pockets of his coat, and placed it in his right-hand trousers pocket, and that, so soon as the defendant stepped into the doorway of the mill and saw the deceased, he at once pulled his pistol and emptied it at the deceased, killing him almost instantly.
The defendant, on the other hand, claimed that he went to the mill to get his meal; that he did not know that the deceased was in the mill; that when he stepped into the door of the mill the deceased at once drew his pistol and began to shoot at him; and that he (the defendant) shot the deceased in self-defense.
The shooting was at very close range. The deceased was struck at least four times, and the defendant, although the deceased shot at him more than once, was not harmed. The theory of the state was that the deceased, after the defendant had opened fire upon him, drew his pistol and shot at the defendant in an effort to save his own life.
(1) When the case was called for trial, the defendant moved the court to quash the venire facias upon several grounds. The record discloses that when the defendant was arraigned upon and pleaded to, the indictment, a day was regularly fixed for the trial of his case, and that the presiding judge made an order fixing 75 as the number of persons who should constitute the venire from which the jury to try the defendant should be selected. The record further shows that 34 persons had been drawn and summoned as regular jurors for the week in which the defendant's case had been set for trial, and that the presiding judge, in open court, drew from the jury box the
While more than 34 names of persons had been drawn to serve as regular jurors for the week in which the defendant's case was set for trial, it is not claimed that either more or less than 34 of such persons were actually summoned. Neither is it claimed that the sheriff did not "forthwith" serve a true copy of the indictment, together with a correct list containing the names of the 75 persons composing the venire, upon the defendant in person, as required by the above-quoted order of the court. It is therefore apparent that the defendant's motion to quash the venire was properly overruled. Special Acts 1909, p. 319, § 32; Jackson v. State, 171 Ala. 38, 55 So. 118; Savage v. State, 57 So. 469.
(2) While the jury was being impaneled, one J. O. Long, whose name appeared upon the venire, stated, on his voir dire, that he had a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict, and that evidence would not remove that opinion. The state and the defendant both expressed a willingness to waive the challenge for cause. The court, however, against the objection of the defendant, ex mero motu, excused the said Long, and refused to allow him to sit as a juror on the trial of said cause. It is the duty...
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