Vaughan v. State

• Decision Date: 27 October 1925
• Docket Number: 6 Div. 472
• Citation: 107 So. 797,21 Ala.App. 204
• Parties: VAUGHAN v. STATE.
• Court: Alabama Court of Appeals

107 So. 797

21 Ala.App. 204

VAUGHAN v. STATE.

6 Div. 472

Court of Appeals of Alabama

October 27, 1925

Rehearing Denied Dec. 15, 1925

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Al Henry Vaughan was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Vaughan v. State, 107 So 799.

See also, 78 So. 378, 201 Ala. 472; 84 So. 879, 17 Ala.App. 383; 93 So. 256, 18 Ala.App. 511.

John A Lusk, of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN, P.J.

The homicide complained of in the indictment in this case was committed by this appellant on April 15, 1917, nearly nine years ago. This case has had an unusual history. As stated in brief of appellant, it has been heretofore tried five times in the court below. One of said trials resulted in a mistrial; the other four in the conviction of the defendant. The first and second trials resulted in a verdict of guilt for murder in the second degree; the third and fifth for manslaughter in the first degree. These judgments of conviction have been reversed, once by the Supreme Court, and twice heretofore by this court. The present appeal is from a judgment of conviction for manslaughter in the first degree and a sentence of three years' imprisonment in the penitentiary.

The testimony shows without dispute that Richard, alias Dick Stephens, the deceased, named in the indictment, was killed by this defendant, and that the wound which caused his death was a pistol shot wound, and that deceased was shot in his back between the shoulders, and that the bullet penetrated his body and lodged just under the left nipple of his breast.

The defendant, as stated, admits that he killed Stephens by shooting him in the back with a pistol. He undertakes to justify himself by insisting that he shot in defense of his father, Ake Vaughan, who had been attacked by Stephens. Under the evidence in this case this defense only was available to defendant. Angling v. State, 34 So. 846, 137 Ala. 17.

The law is that a son may strike in defense of his father, but under the law this right is only coextensive with the right of the father under the existing circumstances of the particular occasion to defend himself; in other words, the son's right to kill in defense of his father depends upon the same conditions as would be necessary to excuse the father under the plea of self-defense.

We will not elaborate upon the elements of self-defense. Generally, the inquiry is: (1) Freedom from fault in bringing on the difficulty. (2) Is there reasonable room and ground for escape from injury? (3) Is the threatened assault of such nature as, if perpetrated, it is likely to produce death or grievous bodily harm? In other words, the essential elements of self-defense are, first, that the defendant must be free from fault, must not say or do anything for the purpose of provoking a difficulty, nor be unmindful of the consequences in this respect of any wrongful word or act; second, there must be no convenient or reasonable mode of escape by retreat or by declining the combat; and, third, there must be a present impending peril to life or danger of great bodily harm, either real or apparent, as to create the bona fide belief of an existing necessity.

The principal inquiry therefore for our determination is: Did the three elements of self-defense above enumerated exist as to Ake Vaughan, father of defendant, in the difficulty between him and the deceased? If the evidence fails to establish either one of the three, the defense here interposed would fall, and the defendant could not be held guiltless for the undisputed killing by him of the deceased. We have carefully studied the evidence before us. Under this evidence we may pretermit entirely the inquiry as to the first and second element of the law of self-defense, as above enumerated, and confine ourselves to the third only. In this connection the evidence of the defendant himself, we think, shows conclusively that at the time he fired the fatal shot into the back of the deceased, his father, Ake Vaughan, who had been knocked down by deceased with a glass jug, was in no further danger of suffering grievous bodily harm or death at the hands of deceased--that at the time the fatal shot was fired by defendant there was not present an impending peril to life or great bodily harm either real or apparent to his father. This conclusion is, as stated, based upon the evidence given by the defendant himself while testifying as a...