Wilkins v. State

• Decision Date: 06 June 1893
• Parties: WILKINS v. STATE.
• Court: Alabama Supreme Court

13 So. 312

98 Ala. 1

WILKINS v. STATE.

Supreme Court of Alabama

June 6, 1893

Appeal from city court of Mobile; O. J. Semmes, Judge.

William Wilkins, having been tried for the murder of one Eichorn, by stabbing him with a knife, and convicted of murder in the second degree, appeals. Affirmed.

The testimony for the state tended to show that on the 7th of August, 1891, while the deceased was in the store where he was employed at work, the defendant and one Ben Worley and William Murdock passed the store together, and beckoned to deceased; that he walked out of the store in his shirt sleeves to where Worley and Murdock were; and that shortly afterwards there was a scuffle, in which the defendant stabbed the deceased twice with a knife; and that, as the deceased stumbled back into the doorway, the defendant struck him in the right shoulder with the knife. Witnesses for the state did not hear any conversation that took place between the defendant and the deceased. The testimony for the defendant tended to show that, on the night prior to the difficulty, the deceased told the said Worley that he could have gotten the defendant's job if he desired it, and that the deceased cursed the defendant, using very insulting language about him. That the next morning the said Worley told the defendant what the deceased had said to him, and that afterwards the defendant, on seeing the deceased in reference to such statements, was told by the deceased that he did not use such language about him. That later on in the day, when the defendant saw Worley, he told him that the deceased had denied saying anything about him, and that thereupon the said Worley asked the defendant to go with him to see one Willie Koppersmith, who had heard the deceased make the statements. That at first the defendant declined saying that the matter was settled. That afterwards the defendant and the said Worley and Murdock started to see said Willie Koppersmith on business, and that, as they passed the deceased's place of business, the said Worley remarked "There Eichorn is. Now call him." That thereupon the defendant beckoned to the deceased, and, on coming out the said Worley asked him, "Did you not make the remark last night I told Willie [Wilkins] you made?" That the deceased hesitated a moment and then said, "After thinking over the matter, I did say it;" and again cursed him in the same language that Worley had told the defendant, at the same time striking the defendant in the mouth. That thereupon the defendant grabbed both of his hands, and that the deceased pulled away from him, and put his hand to his hip pocket, when the defendant took his knife out, and stabbed him. The defendant was introduced as a witness in his own behalf, and his testimony was substantially the same as that above stated; and he also testified that, at the time of the killing, the deceased was larger than he was. The defendant introduced several witnesses who proved that his general reputation in the community was that he was a peaceable, quiet, and good citizen. Upon the introduction of all the testimony, the court, at the request of the state, gave the following written charges, to the giving of each of which the defendant separately excepted: (1) "In case of homicide, the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence which proves the killing shows also that it was perpetrated without malice; and whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts in the evidence, there can be no conviction for any less degree of homicide than murder." (2) "The apparent necessity which will excuse the taking of human life under the doctrine of self-defense, in cases of homicide involves two considerations: First, the defendant himself must have entertained an honest belief in the existence of such necessity; and, second, the circumstances surrounding him must have been such as to impress a reasonable man, under the same state of facts, with the belief of his imminent peril, and of the existence of an urgent necessity to take the life of his assailant, as the only apparent alternative of saving his own life, or else of preventing the infliction on him [the defendant] of grievous bodily harm." (3) "Before the jury can acquit the defendant on ground of self-defense, three essential elements must concur: First, the defendant must be reasonably without default in bringing on the difficulty, and must not be disregardful of the consequences in this respect of any wrongful word or act; second, there must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, imperious, impending necessity to cut in order to save his own life, or to save himself from great bodily harm; and, third, there must have been no other reasonable mode of escape, by retreat or by avoiding the combat, with safety." (4) "If a party enters into a contest, dangerously armed, and fights under an undue advantage, even though mutual blows pass, if he slays his adversary pursuant to a previously formed design, either special or general, to use such weapon in case of an emergency in which his life would not be endangered, or he would not be in danger of suffering great bodily harm, it is not manslaughter, but it is murder." (5) "To make the plea of self-defense available, the defendant must be without fault. If he was himself the aggressor, he cannot invoke the doctrine of self-defense, even if the deceased was approaching him in a hostile manner; and whether the necessity to take the life of the deceased was real or only apparent, if brought about by the design, contrivance, or fault of the defendant, he cannot be excused on the plea of self-defense." (6) "When the defendant sets up self-defense in justification or excuse of a killing, the burden of proof is upon him to show to the jury by the evidence that there was a present, impending danger, real or apparent, to life or limb, or of grievous bodily harm, from which there was no other probable means of escape, unless the evidence which proves the homicide proves also its excuse or justification." (7) "If the defendant, in Mobile county, and before the finding of this indictment, purposely killed the deceased, Andrew Eichorn, after reflection, with a wickedness or depravity of heart towards said deceased, and the killing was determined on beforehand, even a moment before the fatal cutting was done, the defendant is guilty of murder in the first degree." (8) "If the defendant, in Mobile county, and before the finding of this indictment, purposely killed Andrew Eichorn, by cutting him with a knife, with a wickedness or depravity of heart towards said deceased, and the killing was determined on beforehand, and after reflection,-for however short a time before the fatal cutting was done is immaterial,-the defendant is guilty of murder in the first degree." (9) "The court charges the jury that, in determining the weight they will give to the defendant's testimony, they should consider, along with all other circumstances having any bearing on the matter, the fact that he is the defendant, and the fact, if they so find, that his testimony is in conflict with other evidence in the case." (10) "The court charges the jury that the interest the defendant has in the case may be considered by them in weighing his own evidence."

Gregory L. Smith, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HARALSON J.

There were 10 charges given in writing, at the instance of the state, to the giving of each of which the defendant excepted, and assigns as error. These and one other assignment of error, arising on the admission of evidence, raise the questions we are to decide. We consider the charges according to their number, and grouped, as far as practicable, as the counsel for defendant has presented them in argument.

1. Charge No. 1 is a correct statement of the familiar principle of the presumption of malice, which, in cases of homicide, arises from the use of a deadly weapon, declaring that the burden of rebutting this presumption is on the slayer, unless the evidence which proves the killing rebuts it. Its correctness was not questioned in the argument of counsel, and could not be. Hornsby v. State, 94 Ala. 66, 10 South. Rep. 522; Gibson v. State, 89 Ala. 121, 8 South. Rep. 98, Sylvester v. State, 72 Ala. 201; De Arman v. State, 71 Ala. 360.

2. Charges 2 and 6, considered together, have been criticised each, as urged, as involving the proposition "that, before self-defense can be set up, flight must have been shown to have been impossible; they both ignore the material qualification upon this doctrine; that flight need not be attempted if it would increase, or apparently increase, the danger to which defendant was subjected,"-and the second, for the additional reason, as assigned, that it "asserts that self-defense cannot exist unless the defendant entertained the honest belief in the existence of such necessity." The grounds of...