Williams v. State, 8 Div. 144

• Decision Date: 28 June 1935
• Docket Number: 8 Div. 144
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

163 So. 668

26 Ala.App. 529

WILLIAMS v. STATE.

8 Div. 144

Court of Appeals of Alabama

June 28, 1935

Rehearing Denied Aug. 27, 1935

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Almon Williams was convicted of murder in the second degree, and he appeals.

Affirmed remanded for sentence.

Certiorari denied by Supreme Court in Williams v. State (8 Div 687) 163 So. 670.

W.L Almon, of Florence, for appellant.

A.A. Carmichael, Atty. Gen., and Jas. L. Screws and Wm. H. Loeb, Asst. Attys. Gen., for the State.

BRICKEN Presiding Judge.

Appellant was charged with the offense of murder in the second degree, in that he unlawfully and with malice aforethought killed Taylor Fulks by shooting him with a rifle (in the first count of the indictment), but without premeditation or deliberation. In the second count of the indictment it was charged that he killed deceased with a pistol; and in the third count with a gun or pistol. The three counts in the indictment each charged murder in the second degree. On the trial in the court below he was convicted as charged, and from the judgment of conviction this appeal was taken.

The record in this case is voluminous; the transcript contains nearly 150 pages; and, in addition to the oral charge, the court gave nearly 100 special written charges requested by the defendant. The one "refused" charge was the affirmative charge. There is no phase of this case which entitled the defendant to a directed verdict; hence there was no error in the refusal of said charge.

The evidence without dispute or conflict disclosed that Taylor Fulks, the deceased named in the indictment, came to his death as a result of several wounds inflicted upon him during the difficulty between him and this appellant and also the father and brother of this appellant, Lawson Williams, the father, and Hanson Williams, the brother. This appellant admits that at close proximity he shot the deceased twice with a rifle.

Pending the trial there were innumerable exceptions reserved to the rulings of the court upon the admission and rejection of the evidence. There is no necessity or good reason for us to indulge in a detailed discussion of these numerous exceptions, and such discussion will not be had.

The killing being admitted by the accused, the controlling question upon this appeal is whether or not, under the evidence, he was justified in taking the life of Fulks in contemplation of law. The defendant, we apprehend, relied upon self-defense.

It is insisted by the state that from no phase of the testimony, so far as this appellant is concerned, is self-defense available to him (1) for the reason that the evidence discloses that he not only fought willingly, but also brought on the difficulty, or contributed thereto by his words and deeds; (2) that at the time the fatal shots were fired there was no present impending peril to life or danger of great bodily harm, either real or apparent, to himself or his father, or brother, as to create the bona fide belief of an existing necessity. And the state further insists (3) the evidence is without dispute that the defendant had every reasonable opportunity to escape without increasing his peril, and by abandoning the difficulty.

We will not elaborate upon the elements of self-defense, other than to say generally the inquiry is: (1) Freedom from fault in bringing on the difficulty; (2) is there reasonable room and ground for escape from injury? Is the threatened assault of such nature as, if perpetrated, it is likely to produce death or grievous bodily harm? In other words, the essential elements of self-defense are: First, that the defendant must be free from fault, must not say or do anything for the purpose of provoking a difficulty, nor be unmindful of the consequences in this respect of any wrongful word or act; second: there must be no convenient mode of escape by retreat or by declining the combat; and, lastly, there must be a present impending peril to life or danger of great bodily harm, either real or apparent, as to create the bona fide belief of an existing necessity.

It is elementary, of course, in every case where the material evidence is in conflict, it is the exclusive province of a jury to determine the...