Wright v. State

• Decision Date: 17 March 1949
• Docket Number: 6 Div. 692.
• Citation: 39 So.2d 395,252 Ala. 46
• Parties: WRIGHT v. STATE.
• Court: Alabama Supreme Court

39 So.2d 395

252 Ala. 46

WRIGHT v. STATE.

6 Div. 692.

Supreme Court of Alabama

March 17, 1949

Wilkinson & Skinner, of Birmingham, for appellant.

A A. Carmichael, Atty. Gen. and Francis M. Kohn, Asst. Atty Gen., for the State.

The following charges were given at the request of the State.

'1. I charge you, gentlemen of the jury, that it is the law that no person shall carry a pistol concealed on or about his person except in his place of abode or fixed place of business, without a license therefor.

'2. I charge you, gentlemen of the jury, that if you believe from the evidence that the defendant committed a crime of violence and was armed with a pistol and had no license to carry the same, that is prima facie evidence, of his intention to commit said crime of violence.'

LAWSON Justice.

The appellant was indicted for murder in the first degree by a grand jury of Jefferson County, Alabama, and after trial upon said indictment was convicted of murder in the second degree. Her punishment was fixed by the jury at imprisonment in the penitentiary of this state for a period of forty years. Judgment and sentence were in accord with the verdict.

Walter O. Wright, the husband of appellant died on October 5, 1947 as the result of a pistol wound which he received on the preceding night. The shooting took place in a cafe, sometimes referred to in the evidence as 'Nick's Barbecue,' located at the corner of Fifth Avenue and 21st Street in the City of Birmingham.

The trial court gave to the jury the State's requested written charge no. 3: 'I charge you, Gentleman of the Jury, that malice is presumed from the use of a deadly weapon.'

In Hornsby v. State, 94 Ala. 55, 66, 10 So. 522, 526, the trial court gave at the instance of the State a written instruction very similar in its effect to the charge here under consideration. Although the opinion in that case does not so expressly state, it was evidently concerning that charge that the opinion contains the following language: 'Whenever there are any facts testified to on a trial for murder, and which are necessary and are relied upon to sustain the charge of murder, and a jury could legally infer from the facts proving the offense that the defendant acted in self-defense, or the homicide was the result of sudden passion, engendered by sufficient provocation, and without malice, it is error to charge the jury as to the presumptions arising from the use of a deadly weapon, without accompanying such charge with the further statement, 'unless the evidence which proves the killing rebuts the presumption.' * * *' (Emphasis supplied.)

Under the evidence in this case the foregoing language is directly applicable to written charge no. 3 given at the State's instance. We are persuaded that the giving of said charge without the qualifying phrase 'unless the evidence which proves the killing rebuts the presumption,' was prejudicial error, such as to call for a reversal of the cause. Berry v. State, 209 Ala. 120, 95 So. 453; Chenault v. State, 29 Ala.App. 148, 193 So. 326.

Written charges 1 and 2, given at the request of the State, should not have been given, although we do not base our reversal of the cause on that action of the court. Charge no. 1 is not even a correct statement of an abstract principle of law. It applies the provisions of § 175, Title 14, Code 1940, to all persons, which, of course, includes those expressly exempt from the requirements of said section by the terms of § 176, Title 14, supra. Charge no. 2 was no doubt intended to bring to the attention of the jury the provisions of § 173, Title 14, Code of 1940. But as written we think it is misleading and confusing. For instance, it refers to a crime of violence but does not define such a crime.

A large number of written charges were given at the request of the defendant. Only three were refused. They were either properly refused as erroneous or, if proper, were covered by the numerous charges given for the defendant. § 273, Title 7, Code 1940; Hurston v. State, 235 Ala. 213, 178 So. 223.

Many questions were reserved on rulings upon the admission or rejection of testimony. We do not deem it necessary to treat all of them since the cause must be reversed on another ground. However, we think that reference should be made to certain general principles which may be applicable to another trial of the cause.

The reputation of the deceased for violence and turbulence was inadmissible until there was evidence before the court and jury tending to show that the defendant acted in self-defense. Green v. State, 143 Ala. 2, 39 So 362; Watson v. State, 181 Ala. 53, 61 So. 334; Smith v. State, 197 Ala. 193, 72 So. 316; Lambert v. State 208 Ala. 42, 93 So. 708; Russell v. State, 219 Ala. 567, 122 So. 683. Counsel for defendant kept insisting upon the trial of this cause that such was not the rule and that the defendant could introduce such evidence prior to any showing of self-defense, under the rule stated in Fields v. State, 47 Ala. 603, 11 Am.Rep. 771, to the effect that such evidence is competent and proper to enable the jury to determine the degree of the offense and the character of the punishment. But, to that...