Warsham v. State , 17 Ala. App. 181 ( 1919 )

The defendant was indicted for murder in the first degree. The indictment charged that he killed John, alias Hans, Holmes, by shooting him with a pistol, etc. He was tried and convicted of the offense of murder in the second degree, and was sentenced to imprisonment in the penitentiary for a term of 12 years, from which judgment this appeal is taken.

The killing by the means charged is admitted, and the defendant undertakes to justify under the plea of self-defense. It appears that the defendant was a police officer of the town of Alabama City, and without a warrant undertook to arrest the deceased, a soldier in the army of the United States, upon the verbal complaint of two citizens that deceased and others with him were guilty of some misconduct in the home of Mrs. Annie Powell, who lived on White street in Alabama City. The defendant was accompanied by one Harris, another police officer, who assisted in the arrest of the deceased. Rulings of the court upon the evidence, the refusal of special written charges requested by the defendant, and also a part of the oral charge of the court, are insisted upon as error.

The evidence was in sharp conflict upon every material issue on the trial of this case. We have examined very carefully every ruling of the court upon the evidence, to which exception was reserved, and, while there are many, we are of the opinion that no ruling of the court in this connection resulted in prejudice to the substantial rights of the defendant, and that in each instance these rulings were free from error. We do not think it would serve any good purpose to deal separately with each of these rulings and therefore refrain from so doing. Each and every exception, however, has been carefully examined and considered by this court sitting en banc, with the result, as before stated, no reversible error is shown to exist, and that no ruling of the court on the admission or rejection of evidence has probably injuriously affected the substantial rights of the defendant.

There seems to be merit in the insistence of the Attorney General, representing the state on this appeal, that the exceptions reserved to portions of the oral charge were abortive, and were merely descriptive, and that these exceptions were not the reservation of exceptions to a particular, exactly designated, statement of the court, and that the attempted reservation of these exceptions was by reference merely, or descriptive, and did not designate with particularity and certainty the specific portions of the oral charge complained of as being erroneous. The well-settled practice does not allow an exception by description of a subject treated by the court in an oral charge to the jury. Pretermitting, however, these criticisms of the manner in which the exceptions to the oral charge of the court were reserved, and considering them as if they had met the required rule, we are of the opinion that none of them are well taken, and that the portions of the oral charge complained of are not reasonably susceptible of the interpretation insisted upon here, and especially is this true when the portions excepted to are taken and read in connection with the other parts of the oral charge and the final explanations of the charge delivered by the court. We are of the opinion that the oral charge, taken as a whole, which must be done, is free from error of a prejudicial nature.

Charge 1 was properly refused. The evidence in this case is without conflict that the defendant, a police officer, was undertaking to make an arrest without a proper complaint having been made. Rhodes v. McWilson, 16 Ala. App. 315, 77 So. 465; Cunningham v. Baker-Peterson Co., 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27; Ex parte Rhodes, 79 So. 462, 1 A.L.R. 568.¹ The question as to whether an offense was committed by the deceased in the presence of the arresting officer, under the evidence in this case, was for the jury. Defendant was under no duty to retreat, only when lawfully making an arrest as an officer, and if he had no warrant of arrest for deceased, and if the offense, if any, was not committed in his presence, he would not be relieved from the duty to retreat. Charge 1 is faulty for having pretermitted these considerations.

Charge 2 is bad, in that it assumes that defendant was an officer lawfully exercising a right to arrest deceased.

Charge 3 was properly refused. The facts shown by the evidence in this case were in sharp conflict as to whether any offense had been committed in the presence of the officer. The officer had no warrant, and it was a disputed question of fact for the jury, touching the rights and duties of the officer, his responsibility on the one hand, and protection on the other hand.

Charge 4 was properly refused, as it ignores the question of freedom from fault on the part of the defendant in bringing on the difficulty, and under the evidence in this case this was a question for the jury.

The propositions of law embodied in charge 5 were fairly and substantially covered by the oral charge of the court. Furthermore, the law requires that the facts and circumstances must not only be such as to impress the defendant with the reasonable belief that he is in imminent peril, but that he must honestly entertain such belief. This charge was properly refused.

Charge 6 was invasive of the province of the jury. The defendant as a police officer, without a warrant, had no right to enter the house in question and make the arrest, unless an offense was committed in his presence, and upon this question the evidence was in dispute. It was therefore a question of fact for the jury.

Charge 7 was fully covered by the oral charge of the court, and by given charges Nos. 51, 55, and 57, requested by the defendant.

Charge 8 is bad, and also misleading, and was properly refused, for unless a public offense was committed in the presence of the defendant, it being conceded he had no warrant of arrest, he had no right under the law and over the protest of the occupants of the house to enter, even though he had been requested so to do by two citizens of Alabama City. The charge is misleading, in that "going to" and "into" the house are different, and by no means synonymous.

Charge 9 failed to hypothesize an honest or bona fide belief upon the part of the defendant, and also the necessity to kill, as defendant, under the law, if lawfully making an arrest, had the right to use only enough force to subdue the deceased. Furthermore, the principles of law embodied in this charge were covered by the oral charge of the court and by given charge 57, requested by defendant. There was no error in its refusal.

Charge 10 was elliptical; that is to say, defective, having a part omitted. The word "not" was doubtless intended to be incorporated therein. It was properly refused for this reason, and for the further reason that the court's oral charge, and special charges 35 and 55, given at the instance of the defendant, fairly and substantially cover the principles of law embodied therein.

Charge 11 was covered by the oral charge of the court. As written, however, it is bad, in that defendant would have been free from fault in making an arrest only when the arrest was made according to law; otherwise, the fact that he was an officer afforded him no protection, and the duty to retreat would have applied to him, as the law applies it to any citizen. Furthermore, if the defendant, without a warrant, entered the house to make an arrest for a misdemeanor not committed in his presence, and after he got into the house arrests for another offense, he would be a trespasser, and was not in the lawful exercise of his duty as such officer, and could not be protected as such.

Charge 12 was properly refused. Code 1907, § 6269; Tarwater v. State, 16 Ala. App. 140, 75 So. 816.

Charge 13 is subject to the criticism above given relative to charge 12. Moreover, this charge is couched in a doubtful aspect, to wit, "Defendant entered the house for the purpose of arresting deceased (for an offense already committed), or for the purpose of preventing further cursing" (a new or anticipated offense not yet committed). A charge embracing alternative propositions must be good as to each alternative involved, else it is bad. This charge was properly refused.

Charge 14 is without indorsement by the trial judge; however, it appears among those charges marked refused. Though this charge is not so indorsed, as it appears in the bill of exceptions, it may be treated as having been duly accredited to this court. Its refusal was not error, for the law is that malice is presumed from the use of a deadly weapon, unless the evidence that proves the killing overcomes or disproves this presumption. The principle of law contained in this charge was fully covered by the oral charge of the court.

Charge 15 has misleading tendencies. An officer, in making a lawful arrest, may use only such force as may be necessary to subdue the arrested party. In effect, it also refers to the jury a question of law to say what is a legal arrest. This charge, however, was fully covered by the oral charge of the court and by given charge No. 36, requested by the defendant. There was therefore no error in its refusal.

Charge 16 was argumentative, and was properly refused. This charge also pretermits the question of whether the alleged cursing could be heard from the street, or whether the offense was committed in the officer's presence.

Charge 17 is misleading, and is bad. It pretermits whether defendant attempted to lawfully arrest by acquainting deceased with the nature of the accusation against him; for, if the arrest was unlawful, the deceased had the right to refuse to submit to the assumed and pretended authority, and, if the arrest was unlawful, the defendant must justify, if at all, in self-defense. This charge pretermits all such considerations. Furthermore, the trial court should not be put in error for refusing this charge, as it assumes the existence of certain facts, and this rule applies, even if there be no dispute in the evidence about its being such fact. Campbell v. State,13 Ala. App. 70, 69 So. 322.

Charge 18 singles out and gives undue prominence to certain facts or phases of the testimony, and for that reason it was properly refused. Strother v. State, 15 Ala. App. 106,72 So. 566; Willingham v. State, 130 Ala. 35, 30 So. 429. The charge is bad, also, under the rule laid down in Stone v. State, 105 Ala. 60 (ninth headnote), 70, 71, 17 So. 114.

Charges 19, 19 1/2, 20, 21, 22, 23, and 24 are not argued in brief of counsel, or their refusal insisted upon as being error. We have, however, examined these charges, and find no error in the ruling of the court in this connection, as the principles of law embodied in the charges, which are not bad, were fully covered by the oral charge of the court, or by the given charges requested by the defendant.

Charge 25 is unintelligible, and was properly refused. The oral charge of the court fully covers the principles of law undertaken to be embodied in this charge. The same criticism applies to refused charges 26, 27, and 28; they were therefore properly refused.

Charge 29 is argumentative and involved, and is invasive of the province of the jury. The question of malice, as well as all the constituent elements of murder, were fully and ably given by the court in its oral charge to the jury. There was no error in the refusal of this charge.

Charge 30 is the affirmative charge upon the offense of murder, and under the facts in this case the defendant was not entitled to this charge, this being a question for the jury, and this charge invaded the province of the jury.

It appears from the entire record that the defendant has had a fair and impartial trial, and that this trial was free from any error which has injuriously affected his substantial rights. The judgment of conviction is affirmed.

Affirmed.

Reversed and remanded, on authority of Ex parte Warsham,203 Ala. 534, 84 So. 889.

¹ 202 Ala. 68.