AL - 1899: Hollis Scroggins, Chassie Scroggins convicted w/intent to murder.
SCROGGINS et al. v. STATE.
(Supreme Court of Alabama. Feb. 2, 1899.)
Assault with Intent to Murder—Provoking Difficulty—Evidence—Instructions.
1. One assaulting another with intent to murder cannot invoke the doctrine of self defense, where just prior to the assault he charged prosecuting witness with seducing his sister, as he was not free from fault in bringing on the difficulty.
2. Defendants approached prosecutor, and asked him why he had seduced their sister, and he denied doing so; and, on being told that they knew he did, he placed his hand to his pistol pocket, when one of the defendants began firing on him. Held proper to charge that defendants were guilty of assault with intent to murder, in the language of Code 1890, §4856 (3727). defining murder in the second degree, if they assaulted prosecutor in a sudden affray, by the use of deadly weapons, before the commencement of the fight, while he had no weapon drawn.
3. A charge that defendants were entitled to fire first, if prosecutor spoke angrily and in- sultingly and placed his hand on his pistol pocket, is erroneous, as ignoring defendants' duty to retreat, if they could do so safely.
4. One accused of assault with intent to murder may be guilty of having provoked the difficulty, precluding him from invoking the doctrine of self-defense, though he did not intend to provoke any difficulty when he approached prosecutor.
5. It is not proper to hypothesize, in an instruction, as doubtful, a fact which defendant
has admitted.
Appeal from circuit court. Lawrence county;
Thomas R. Roulhac, Judge.
Hollis Scroggins and Chassie Scroggins were indicted, tried and convicted for an assault upon one Gabe Chilcoat, with a pistol, with the intent to murder, and were sentenced to the penitentiary for four years, and they appeal.
Affirmed.
On the trial of the cause, the evidence for the state tended to show that while Gabe Chilcoat was riding horseback along a country road, to town, defendants stopped him by catching hold of the horse's bridle, and after exchanging a few words, one of the defend-ants fired upon him, and after said Chilcoat had fallen from his horse and turned to run, said defendant continued to fire; that said Chilcoat was shot by the defendants, or one of them, seven times.
The evidence for the defendants tended to show that said Chilcoat had seduced their sister; that they learned of this fact the night before the shooting, and that when they approached said Chilcoat they asked him why he seduced their sister; that Chilcoat replied that he had not done so, and upon being told that they knew he had, Chilcoat cursed them, and after saying that he was ready for them, threw his right hand behind him to his pistol
pocket, and that when that was done, one of the defendants drew his pistol and began firing at him. There were other witnesses introduced by the defendants, whose testimony tended to show that Chilcoat had ruined the defendants' sister.
Upon the examination of the said sister, after she had testified to her seduction by said Chilcoat, she was asked whether or not said Chilcoat had had illicit relations with her the last time he was at her father's house, and if he told her on said day that if her father and brothers ever said anything about It to him he would kill them. The solicitor objected to this question, the court sustained the objection and the defendants excepted. Thereupon the defendants asked said witness whether or not said Chilcoat was the father of her illegitimate child. The solicitor objected to this question, the court sustained the objection and the defendants duly excepted.
Upon the introduction of all the evidence, the court in its general charge to the jury, among others, gave the following instructions: (1) "I charge you, gentlemen of the Jury, that If the defendants approached Chilcoat and asked him why he had seduced their sister and that Chilcoat replied that he had not done so, and that the defendants then said to him.'You need not deny it for you know you are guilty,' the defendants are not without fault in bringing on the difficulty and cannot invoke the doctrine of self-defense." (2) "I charge you that if you believe the evidence beyond a reasonable doubt that the assault in this case. If one was committed, was in a sudden rencounter or affray and caused by the defendant by the use of deadly weapons which were concealed before the commencement of the fight, Chilcoat, their adversary, having no deadly weapon drawn, then the defendants would be guilty of an assault with Intent to murder." To the giving of each of these charges the defendants separately excepted, and also separately excepted to the court's refusal to give each of the following charges requested by them. (3) "If the defendants in this case did not provoke or bring on the difficulty, but approached Chilcoat in an orderly and peaceful manner, and Chilcoat replied angrily and Insultingly, placed his hands upon or in the direction of his pistol pocket in such a manner as to indicate to a reasonable man that his purpose was to draw and Are, the defendants were authorized to anticipate him and fire first. I charge you further that the defendants would be entitled to an acquittal at your hands, If It should turn out that Chilcoat was unarmed, provided they were without fault." (4) "Gentlemen, the defendants are charged with the offense of an assault with intent to murder Gabe Chilcoat, which under our law is a felony. The law is given you in charge by the court, but you are the sole judges of the testimony. As jurors it is your duty to give the evidence your most careful consideration. If from all
the evidence you believe beyond all reasonable doubt that the defendants are guilty of an assault with intent to murder you should so find, but I further charge you that sudden passion upon adequate provocation may deprive the assault of its felonious character, and if you believe from all the evidence in this case that the defendants were so actuated by a sudden passion engendered by an adequate provocation, then, in that event, you should not find the defendants guilty of an assault with intent to murder." (5) "If the defendants, with no intention of bringing on a difficulty, approached Chilcoat in a peaceable manner, and Chilcoat made a hostile demonstration by appearing to draw a pistol, in such a manner as to indicate to a reasonable man that his purpose was to draw and fire, and if the defendants were in such proximity to Chilcoat as to render it hazardous to attempt flight, then the law would not require the accused to endanger his safety by attempting flight." (6) "Gentlemen, the defendants are charged with the offense of assault with intent to murder Gabe Chilcoat, which under our law is a felony. The law is given you in charge by the court, but you are the sole judges of the facts. As good citizens and as jurors it is your duty to give the evidence your most careful consideration. If from all the evidence you believe beyond all reasonable doubt that the defendants are guilty of an assault with intent to murder, you should so find, but I further charge you that sudden passion upon adequate provocation may deprive the assault of Its felonious character, and in such case, if the evidence convinces you it is true, you should not convict the defendants of assault with intent to murder. If you have a reasonable doubt from the evidence of defendants guilt of an assault with intent to murder, then you should consider whether they are guilty of an assault If you are satisfied from all the evidence beyond all reasonable doubt that the defendants are guilty of an assault, then you should find them guilty, and (may) assess a fine of not more than $500." (7)"I charge you that if you believe the evidence you must find the defendants not guilty."
James Jackson and Lowe & Abercrombie, for appellants.
Wm. C. Pitts, Atty. Gen., for the State.
HARALSON, J. The first charge given by the court asserts a correct proposition of law. The settled rule In this court is, that a defendant must be entirely free from fault in bringing on the difficulty, before he can set up the plea of self-defense. If the facts hypothesized were true, the defendants were not free from fault, Ellis v. State (Ala.) 25 South. 1.
The second charge is in the substantial language of section 4856 (3727) of the Code, in defining murder in the second degree on the facts hypothesized, and the charge as given was a very proper instruction in a case of this character.
The rule is familiar that no one can avail himself of the plea of self-defense, in a case of homicide, or assault with intent to murder, when the defendant was himself the aggressor, and willfully brought on himself, without legal excuse, the necessity for the killing, or the assault made. He who provokes a personal rencounter, in any case, thereby disables himself from relying on the plea of self-defense in justification of a blow which he struck during the rencounter. Page v. State. 69 Ala. 229; Leonard v. State. 66 Ala. 461; Kimbrough v. State. 62 Ala. 248. Refused charge numbered 3, under the undisputed evidence, Is in contravention of the foregoing rule. Moreover, it ignores the duty of retreat by defendants if they could have done so safely.
The fourth and sixth charges carefully ignore freedom from fault In defendants in provoking the rencounter in which they shot the party assaulted, as well as their duty to retreat, and were properly refused. Besides, there is no evidence that defendants in making the assault were actuated by passion suddenly aroused. Their own admissions show that no such passion existed, and that their assault did not result therefrom.
The fifth charge was properly refused. It does not sufficiently hypothesize freedom from fault in bringing on difficulty. Defendants may have approached the party they assaulted, with no intention of bringing on a difficulty, and yet, they may have been guilty of doing an act or saying something at the time, that made them the aggressors.
The evidence is without conflict that defendants were in fault in producing their alleged necessity to shoot the party assaulted. Their own evidence admits it. It was not proper, therefore, to hypothesize In their defense, as this charge did, for the consideration and ascertainment by the jury, a fact as doubtful, which the defendants themselves admitted to be true. From what has been said, it will appear, that there was no error in sustaining the objections to the questions propounded by defendants to their witness. Annie Scroggins. There is no question of self-defense in the case, the evidence being without conflict, as has been stated, that defendants were in fault in bringing on the difficulty. We find no error in the record, and the judgment and sentence of the court below are affirmed.
Affirmed.
Source: The Southern Reporter, Volume 35, Supreme Courts of Alabama, Louisiana, Florida and Mississippi, March 22 -June 28, 1899; Pgs. 180-181