White v. State

• Decision Date: 05 April 1921
• Docket Number: 7 Div. 666
• Citation: 90 So. 63,18 Ala.App. 96
• Parties: WHITE v. STATE.
• Court: Alabama Court of Appeals

90 So. 63

18 Ala.App. 96

WHITE v. STATE.

7 Div. 666

Court of Appeals of Alabama

April 5, 1921

Appeal from Circuit Court, Dekalb County; W.W. Harralson, Judge.

Walter White was convicted of manslaughter for the killing of Pope Horton, and he appeals. Reversed and remanded.

The following charges were refused the defendant:

(12) If there is one single fact proved to the satisfaction of the jury, which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.

(13) The defendant had the right to shoot in self-defense to save his life, or to save himself from great bodily harm provided he was free from fault in bringing on the difficulty, and provided, further, he had no reasonable mode of escape without increasing his danger.

(14) If the defendant was free from fault in bringing on the difficulty and if he had no reasonable mode of escape without increasing his danger, then he had a right to act in self-defense.

(16) If, from the consideration of all the evidence in the case, there is created in the minds of the jury two reasonable theories as to the death of Horton, one theory against the defendant, and the other theory in his favor then it is the duty of the jury to accept the theory in favor of the defendant, and to acquit.

Appleton & Presley and C.A. Wolfes, all of Ft. Payne, for appellant.

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

BRICKEN P.J.

Charge 16, refused to defendant, was an invasion of the province of the jury, and was properly refused. If the jury, from the consideration of all the evidence, entertain two theories as to the death of the deceased, one of which was against defendant, and the other theory favorable to him, it was for the jury to decide, after a consideration of all of the evidence, which theory to adopt as their verdict, and it was not within the province of the court to instruct them as to which theory they shall accept. Charges of similar import have been many times condemned by this court and by the Supreme Court. Harvey v. State, 15 Ala.App. 311, 73 So. 200, and cases cited.

There was no error in refusing charge 12, as it pretermits a consideration of all of the evidence, and is otherwise bad. It has been expressly so held in the cases of Pippin v State, 197 Ala. 613, 73 So. 340, and Love v State, 17 Ala.App. 149, 82 So. 639.

Charges 13 and 14 were substantially covered by the oral charge; therefore their refusal was without error.

Proof of good character, when taken in connection with all the evidence in the case, may generate a reasonable doubt, which entitles the defendant to an acquittal, even though, without such proof of good character, the jury would convict. Charge 15, refused to defendant, properly stated the law, and its refusal was error. This charge was not covered by the oral charge of the court, and its refusal cannot be justified on that ground. Watts v. State, 177 Ala. 24, 59 So. 270.

The deceased, Horton, was killed on the public highway in Dekalb county, about noon, on the 12th day of May, 1919. It appears that several hours prior to the time of the homicide--that is, "shortly after breakfast" on that same day--the defendant undertook to have a conversation over the telephone from the home of witness Ayers, with the then unmarried daughter of deceased. But she declined to talk to him whereupon he hung up the phone and started to his home, traveling in his buggy. While the testimony relating to the telephone conversation was allowed, over the objection and exception of the defendant, the witness Mrs. Lumpkin Ritchie, without objection of any character, was permitted to testify that she told her brother about it in a short time thereafter, and that she went to the field where he was plowing for the purpose of telling him; that she did not tell her father (deceased), but her brother did so tell him. Soon thereafter her father and brother got their guns and left home in a buggy, and from there they went and got with Dr. M.L. Casey, son-in-law of deceased, and all...