Walker v. State

• Decision Date: 13 March 1930
• Docket Number: 8 Div. 142.
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

126 So. 848

220 Ala. 544

WALKER v. STATE.

8 Div. 142.

Supreme Court of Alabama

March 13, 1930

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

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

Reversed and remanded.

Refusing instruction on self-defense pretermitting consideration of evidence held not error.

The following requested charges were refused to defendant:

"K2. If you are reasonably satisfied from the evidence that defendant apologized to White after defendant had threatened White, and that White accepted the apology, and if they then became friends in fact, I charge you, that the fact that defendant made threats against White, should not be considered against the defendant by you, in this case." "R. The burden of showing that he acted in self-defense is not on defendant further than to raise a reasonable doubt as to whether he acted in self-defense or not; and if you have a reasonable doubt as to whether defendant acted in self-defense, you should find defendant not guilty."

"O. A reasonable doubt is sometimes said to be a doubt for which a reason can be given; it must spring from the evidence in the case, and the evidence only; if, after careful consideration of all the evidence you have a doubt arising from the evidence or any part of the evidence of the defendant's guilt, and if such doubt seems to be reasonable to you, then the defendant should be acquitted."

4. "If the deceased made a sudden unprovoked, murderous attack upon defendant, the deceased at the time being armed with a deadly weapon, and in the act of effecting upon the defendant his murderous purpose, and after considering all the evidence in the case you find this to be true, then I charge you, the defendant was under no duty to retreat but had the right to stand his ground and to kill his assailant."

3. "In determining who commenced the difficulty in which Wesley White was slain, if you are reasonably convinced from the evidence in the case that the defendant approached White in good faith with the intention of rendering assistance to White if needed, by asking; 'Do you need any help?' I charge you that that was not the commencement of the difficulty; and if you find that in answer to that inquiry of defendant (if made), the deceased-Wesley White-answered by using abusive or insulting language to defendant, I charge you that Wesley White commenced the difficulty in which he was killed; and if defendant did not enter into that difficulty willingly, he would not be precluded from setting up self-defense in this case."

6. "The burden is upon the State to prove to your satisfaction beyond all reasonable doubt, that the defendant in this case brought on the difficulty in which Wesley White was killed; and if the State has not done this, and you find from the evidence that defendant was placed in sudden peril of loss of life by deceased shooting at him with a pistol within shooting distance, and that there was no way of retreat open to defendant without increasing his peril, then I charge you that if defendant killed Wesley White under such circumstances, the killing was in self-defense, and you should acquit the defendant by your verdict."

O. Kyle, of Decatur, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BROWN J.

The appellant, on April 27, 1929, killed Wesley White by shooting him with a pistol, and on his trial was convicted of murder in the second degree, and, as a punishment for the offense, was sentenced to serve thirty-five years in the penitentiary.

The rencounter between the deceased and the defendant took place at night between 10 and 11 o'clock on the side of a public road on Wolf's Mountain in the eastern part of Morgan county, some two or three miles from the nearest habitation. The meeting of the parties at this place, so far as the evidence shows, was accidental, and aside from the defendant and the deceased, two persons were present and witnessed the difficulty. These were Miss Ruby Morrow, who accompanied the deceased in his car, and Lewis Gullion, who was with defendant in defendant's car.

Miss Morrow, who was introduced as a witness for the prosecution, to state the substance of her testimony, testified that deceased driving his car, accompanied by witness, approached the place of the difficulty going north, and drove to one side of the road for the purpose of turning the car, when they discovered that the brakes on the car were out of order, and deceased got out of the car to see what the trouble was, and after they had been there about ten minutes they saw the lights of the defendant's car approaching, to quote her language: "The car that I saw coming, was coming from the direction of Union Hill; this car that I saw was going in the direction that we came from; it was headed in the direction that we came from. This car that came up, drove by where we were, about fifty steps; and then backed down; when the car was passing by nothing was said; when it backed back it was about twelve-or between twelve and fifteen feet, I reckon, from us. He (defendant) stopped his car and said: 'Who is that?' When he first said that he hadn't got out of his car; he said: 'Who is that?' and Wesley White didn't answer him, and I told him to answer, and he opened the door of the car and waited for another call, and the defendant asked again: 'Who is that?' and Wesley White said: 'It is us.' The defendant, Fred Walker then said: 'Whose car is it?' I recognized his voice when he spoke, and Wesley White said: 'It is my car.' Fred Walker, the defendant, got out of his car and started up there. Mr. White told him not to come up there, and he said cut out arguing with him. *** He said: 'Why should you tell me not to come up there, I wanted to see if anybody was hurt or in trouble in any way?' Wesley White again told him not to come up there, *** and he (defendant) came on any way. He came up to where we was (were), and I began to talk and (asked) him to go on and not be raising trouble like that, and he told me he wasn't raising trouble. I talked to him all the time to keep him from Wesley. I told him: 'I told you there wasn't anyone up here and he did too, and why did you come up here?' And Wesley said: 'She told you there wasn't anyone up here,' and said: 'Fred what did you come up here for?' and Walker, the defendant said: 'Don't you get too fresh, I will end you up here, right here.' There was nothing else said then; the defendant then caught me by the arm and pushed me and shoved me as hard as he could, and Wesley grabbed at me, and when he stooped down to pull me up, Fred Walker, the defendant, reached over my shoulder and shot Wesley White through the head; he shot twice but he didn't hit Wesley but once. Wesley White shot twice, but did not shoot until after the defendant, Fred Walker, had shot twice. When Wesley White shot he had his right arm around me, and he had his pistol in his right hand when he reached to catch me, and he still had his arm around me with his pistol in his right hand; and he shot with his right hand. He fired two shots and then he fell; when White fell, Walker turned and went back to his car."

On cross-examination, this witness stated, among other things: "It was the first shot, in my judgment, that killed Mr. White. That shot entered on the left hand side of Mr. White's head, above the upper part of the cheek in front of his ear, and came out on the right side of his neck, severing a jugular vein." That when defendant shot, White grabbed the witness with both hands and stood up for a little bit, then fell and died there. The evidence is without dispute that the weapon used by the defendant was a 38-caliber Smith & Wesson special.

Lewis Gullion, the other eyewitness, was offered by the defendant and testified in respect to what occurred at the place of the difficulty and immediately before: "We were going in the direction of Mr. Irwin's, which I think was Southwest. We were going through woods over there on the road-the road went through the woods-and there was an automobile parked on the side of the road. We were in the road. The road at that place has got a curve in it; the night was dark; the way that we saw that automobile was, as we came around the curve the lights of our car shone on the windows of the parked automobile. We stopped our car about fifteen or twenty yards from the parked automobile-Mr. White's car; we were not exactly even with the parked automobile when we stopped. *** Fred Walker was driving our car; when we stopped, Fred got out of the car and walked back towards Mr. White's car, and he said: 'Do you need any help?' He didn't get any answer, and he called again and says (said): 'Do you need any help?' and White, I reckon it was Mr. White, said: 'No, and d_____n you, don't you come on up here.' Fred said: 'I don't want to have any trouble with you; I stopped here like a man to see if you needed any help.' Mr. White then said: 'Yes, and you are all time stopping where you haven't got any business.' Mr. Walker, the defendant, then said: 'You needn't get so hard boiled, I never stopped here for any trouble, I stopped like a man, and I will go on. I thought you might need some help.' When Fred said that this girl that was there (Ruby Morrow) commenced hollering: 'Don't do that, don't do that, he is fixing to leave.' *** When this trouble was going on I was in Fred Walker's car; I could not see the parties, it was so dark; I did not see who fired the first shot, but I saw the flash of the first shot; the flash of the first shot came from the direction of where this car was parked out there, and came kinder in the direction of where this defendant was, in the direction of our car. That was the flash of the first shot fired. ...