Walker v. State

• Decision Date: 21 May 1931
• Docket Number: 8 Div. 245.
• Citation: 135 So. 438,223 Ala. 294
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

135 So. 438

223 Ala. 294

WALKER v. STATE.

8 Div. 245.

Supreme Court of Alabama

May 21, 1931

Rehearing Denied June 25, 1931.

Appeal from Circuit Court, Morgan County; Jas. E. Horton, Judge.

Fred Walker was convicted of murder in the second degree, and he appeals.

Affirmed.

The refusal of requested instructions covered by those given held not error.

The following charges were refused to defendant:

"4. It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; and if, after considering all the evidence the jury is reasonably satisfied that the circumstances attending the firing of the fatal shot was such as to impress the defendant with the reasonable and honest belief at the time of the firing the fatal shot that it was necessary in order to prevent death or great bodily harm to his person, and that defendant was so impressed, then the jury should find the defendant not guilty, unless they further find that the defendant was not free from fault in bringing on the difficulty, or that he entered into that difficulty willingly."

"E. While it was not essential that the defendant should have had a specific intent to provoke or bring on the difficulty in order to put him at fault in bringing on the difficulty, yet, if after considering all the evidence, the jury is convinced that the words used by the defendant to the deceased immediately preceding the killing were neither offensive or wrongful, then I charge you, that defendant did not provoke or bring on the difficulty in which Wesley White was slain; and, if defendant was placed in sudden peril of loss of life by Wesley White first assaulting him by shooting him with a pistol, and defendant did not enter the difficulty willingly, I charge you, that defendant had the right to stand his ground and to kill Wesley White; and, if you find that Wesley White was killed under these circumstances, your verdict in this case should be not guilty."

O. Kyle, of Decatur, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

FOSTER J.

The report of this case on former appeal states its nature, and the facts are very much as they appeared on that appeal. Walker v. State, 220 Ala. 544, 126 So. 848. This court then held that there was error in refusing charge 4. On the next trial, that charge was given marked charge L.

Appellant claims that his refused charge 4 (different from that numbered 4 on former appeal) should also have been given. As pointed out on former appeal, this court has frequently followed the statement in Matthews v. State, 192 Ala. 1, 68 So. 334, defining the exception to the general rule as to the duty to retreat and there restated it. Given charge L on this appeal and refused charge 4 on former appeal are in the language of that exception. The authorities on the subject are noted in that opinion. Refused charge 4 on this appeal emphasizes the principle that an apparent necessity to shoot, when properly hypothesized, is equal to a real necessity, but it omits direct reference to any duty to retreat.

The court in its oral charge properly and fully instructed the jury on those two principles included in the doctrine of self-defense. When the issue is in the case, the jury should be and were on this trial instructed on the law of retreat in this connection. In one respect, as in given charge L, they were instructed when as a matter of law the duty of retreat is excused. There are of course other circumstances which excuse retreat, not as a matter of law, but when the jury infers from sufficient evidence that defendant is justified in the belief and does believe that he cannot retreat without increasing his peril. The court also covered this aspect of the law.

It is contended that refused charge 4 should have been given, though it did not expressly hypothesize an absence of the duty of retreat as an inference of fact nor hypothesize facts which relieve the defendant of such duty as a matter of law. As an abstract proposition, it may be admitted that the charge does not assert an unsound principle when fully understood. For it will be noted that it is hypothesized on the necessity to shoot to protect himself, and, therefore, there can be no such necessity if there is apparent to him an opportunity to retreat without increasing his safety. An allegation of such necessity is inferentially an exclusion of a duty to retreat. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am. St. Rep. 96; Holmes v. State, 100 Ala. 80, 84, 14 So. 864; Underwood v. State, 179 Ala. 9, 19, 60 So. 842.

Charges of the nature, if not in the identical language of this charge 4, have been considered by this court in several cases. In the case of Goodwin v. State, 102 Ala. 87, 99, 100, 15 So. 571, though the meaning of necessity as implying an exclusion of an opportunity to retreat is noted, it is said that it should not be given except when the evidence shows that there was no such duty to retreat. Goldsmith v. State, 105 Ala. 8, 13, 16 So. 933. See, also, Hill v. State, 194 Ala. 11, 69 So. 941, 2 A. L. R. 509. In Webb v. State, 100 Ala. 47, 14 So. 865, 867, the court said the charge is faulty, "in that it ignored altogether the duty of retreat," and cited Keith v. State, 97 Ala. 32, 11 So. 914, and the Gibson and Holmes Cases, supra. In the Keith Case the charge was said to state the law correctly.

Going back to our statement made above that when properly considered it does not in fact ignore the doctrine of retreat, it does not expressly refer to it, and therefore may be refused without error, as having a misleading tendency when the circumstances make the duty of retreat a question for the jury to be ascertained from the evidence and especially when the court has otherwise instructed the jury on the several matters embraced in the charge.

In this case, the questions referred to in the charge were for decision by the jury from the evidence, including the duty to retreat, and the court fully and correctly instructed the jury as to that duty. There is therefore no reversible error in refusing charge numbered 4.

There was no reversible error in refusing charge E. The defendant had the benefit of the legal doctrine of a want of necessity to retreat in his given charge L. Defendant may be at...