Weaver v. State, 6 Div. 850

• Decision Date: 17 January 1950
• Docket Number: 6 Div. 850
• Citation: 44 So.2d 773,35 Ala.App. 158
• Parties: WEAVER v. STATE.
• Court: Alabama Court of Appeals

Page 773

44 So.2d 773

35 Ala.App. 158

WEAVER v. STATE.

6 Div. 850.

Court of Appeals of Alabama.

Jan. 17, 1950.

Rehearing Denied Feb. 7, 1950.

Morel Montgomery, of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.

This charge was refused to defendant:

'MM. I charge you gentlemen, the evidence of the State shows that this defendant was seated in his automobile at the time of the shooting. I charge you gentlemen, under the law, the automobile in which defendant was seated was his property and therefore being on or in his own property, the defendant under the law would be under no legal duty to retreat from imminent danger or peril, if you believe from all the evidence he was or believed himself to be in iminent peril or great danger at the time.'

CARR, Judge.

Without dispute in the evidence John Norton Weaver, the appellant, killed Ersal R. Hall by shooting him three times with a pistol.

For the homicide the accused was indicted for murder in the first degree and was convicted of manslaughter in the first degree.

The defendant claimed self defense.

In brief the appellant's counsel urges that the general affirmative charge should have been given in his client's behalf. There is very little conflict in the evidence, and it appears reasonably certain that Hall brought on the fatal difficulty. However, he was unarmed and this fact, together with all the circumstances in connection with the affray, required that the other elements of the doctrine of self defense be submitted to the jury.

In the case of Olive v. State, 8 Ala.App. 178, 63 So. 36, 37, this court held: 'Neither did the court err in refusing the affirmative charge requested by defendant; for even assuming, contrary to the truth, that inferences from the facts proved by the state did not at all contradict defendant's version of the difficulty--he being the only eyewitness as to how it happened and took place--and even assuming that he was free from fault in bringing on the difficulty, as he swore, and that he fired only under the conditions and circumstances testified to by him, it was still for the jury to say whether these conditions and circumstances were such as to create the necessity of taking the life of deceased in order for him (defendant) to save his own life, or his person from serious bodily harm, or a reasonable belief that such necessity existed.'

See also, Miller v. State. 31 Ala.App. 319, 16 So.2d 335; Denson v. State, 32 Ala.App. 554, 28 So.2d 174; Lewis v. State, 25 Ala.App. 188, 142 So. 779; Cooley v. State, 233 Ala. 407, 171 So. 725.

It is very evident that excessive consumption of whisky was the prime cause of the homicide. In respect to extreme intoxication it seems that the deceased was the more culpable.

Attorney for appellant in brief complains that the trial judge in his oral charge erroneously defined manslaughter in the first degree. In connection with this insistence counsel makes this statement: 'The record shows no such exception but this being such a glaring error of law is it necessary when the court supposedly well versed in the law so charge a jury concerning manslaughter as is stated in his charge in this cause. Is an assignment of error or exception necessary? Is it not such a glaring error of law that the court here, this court of Appeals ex mero motu would not itself take judicial...