Nabors v. State , 120 Ala. 323 ( 1898 )

DOWDELL, J.

The defendant was indicted and tried in the circuit court of Shelby county on a charge of murder. During the progress of the trial the jury, in charge of a bailiff of the court and by permission of the court, retired to a water closet, which was located on the same floor with the court room, and adjoining the vestibule to the court room ; the closet being entered by a door opening into the vestibule. In a short while eleven of the jurors in charge of the bailiff returned to the court room resuming their places in the jury box. The twelfth juror remained alone in the closet, no other person being within the closet during the stay of this juror in the same. While said juror remained in the closet another bailiff of the court remained in the vestibule, the' only access to the closet being the door which opened into tire vestibule. The vestibule was in front of the bench of the presiding judge, and the door leading from the court room into the vestibule being open, together with the windows on either side of . the door, afforded a view of the vestibule to the judge. This twelfth juror in a short while afterwards came directly from the closet through the vestibule into the courtroom, resuming his seat in'the jury box. He.had no communication with any person, and saw no person in the vestibule except the officer of the court. This was not an unwarranted separation, nor was it at all calculated to injure or prejudice the defendant.—Butler v. State, 72 Ala. 179.

The testimony offered by the State tended to show a deliberate and unprovoked killing by the defendant of the deceased. The defendant set up the plea of self-defense, and testified in his own behalf along :that line. He also introduced evidence tending to impeach several of the State’s witnesses on their bad character for truth and veracity-. The State in rebuttal of this impeaching testimony introduced evidence tending to ,sustain the character of one of the witnesses sought to be- impeached.

The court, after giving a number of charges requested by the defendant, refused to give the written charges requested by the defendant and' designated as a, b, c, d, e, f, g, h, and i, and which we are now to consider.

The charges designated a, b, c, g, h, and i, based on the theory of self-defense, may well' be treated and disr posed of together. While some of them have more vices than others, each and every one of them is afflicted with the common infirmity of omitting an essential element of the law of self-defense. In a trial for homicide where the defendant invokes the doctrine of selfdefense; the defendant must himself be free from fault in bringing on the difficulty; and this being so, it is incumbent upon him to show, (1) that at the time of tlie latal blow there existed an imperiou's necessity j real - or apparent; to strike in order to save his own life or himself/from great-bodily h-arm and (2) that he had no reasonable mode óf escape without--increasing his owfi péi;il, or putting himself at''a’-disadvantage under Which he did not-already labor.' -Such-necessity dóés-nót exist ■unless the-"apparent danger be süch -as would’ créate-a reasonable apprehension and ' producé in the -mind- of the defendant an honest belief of existence-.

Such being the law where ther’e is evidence tending to show an unjustifiable killing, a'charge to the jury at the request of the defendant predicated upon this plea, which omits to hypothesize these elements of self defénse, or any' one of them, containing an' instruction 'to acquit, should - not be given by - the could. Testing ‘the written charges a, b, c, g, h, and i, by the foregoing standard, they- were properly refused.—Roden v. State, 97 Ala. 54; Rutledge v. State, 88 Ala. 85; Zaner v. State, 90 Ala. 651; Waller v. State, 89 Ala. 79; Naugher v. State, 105 Ala. 26. While charge's b and -i do not contain instructions to- acquit, they are- offensive to the- law laid down'in other respects. Thé mere “thought” or imagination in-the mind of the defendant, though arising ffd-m appearances, of-the existence f imminent peril to- h'iinSelf Will not justify the killiúg óf his'adversary. As Said above, the appearances must be such as to create a reasonable appfé'hensiori and produce an hon'est belief in ithé ‘defendant’s miiidof the existence of imminent peril 'or impending danger to his life or Of great' bodily -harm'.

-The indictment is in the form given in- the Code. Crim. Code of 1896, p. 333, Form 63. The statute defines-murder ill the first and second degrees-Code, 1896, § 4854. his section refers- to Form 63 as the form for indictment. ‘The indictment in terms charges murder iu the second degree under the law. The only conclusion, therefore, is that, while it in terms charges murdór in the second degree, the statute-makes it a sufficient indictment for murder in either degree. The indictment then charging murder in the second as well as in the first degree, the charge designated (d), and requested by the defendant, was bad in the use of the word ‘ ‘premeditation, ’ ’ this not being an essential ingredient of murder in the second degree as defined by the statute.

Charge (e)does not state the law of self-defense correctly in that it qualifies the freedom from fault in bringing on the difficulty.—Henson v. State, 112 Ala. 41; McQueen v. State, 103 Ala. 12; Johnson v. State, 102 Ala. 1.

As there was no attempt to impeach any witness in the case by proving contradictory statements, .charge(f), in hypothesizing an impeachment on that ground, was to that extent abstract, and for that reason was properly refused.

• We find no error in the record, and the judgment of the circuit court is affirmed.