Opinion
3 Div. 550.
February 11, 1922. Rehearing Denied May 11, 1922.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
W. A. Gunter, of Montgomery, for appellant.
Charge 11, given for defendants, was erroneous. 3 Brick. Dig. 107; 68 Ala. 424; 69 Ala. 249; 58 Ala. 406, 29 Am. Rep. 757; 47 Ala. 564; 59 Ala. 92; 69 Ala. 242, 44 Am. Rep. 515; 55 Ala. 210. Charge 15, given for defendants, was error to reverse. 103 Ala. 12, 15 So. 824; 111 Ala. 11, 20 So. 528; 110 Ala. 24, 20 So. 119; 89 Ala. 121, 8 So. 98, 18 Am. St. Rep. 96; 161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636; 94 Ala. 90, 10 So. 509; 113 Ala. 42, 21 So. 211, 59 Am. St. Rep. 92; 88 Ala. 11, 6 So. 755; 88 Wn. 429, 153 P. 355, L.R.A. 1918A, 359. The argument of counsel for defendant, appealing for a verdict for Varner because he was sued out of his county, was prejudicial to plaintiff, and the motion for new trial on this ground should have been granted. 26 Okl. 665, 110 P. 884, L.R.A. 1918D, 1-115; 64 N.H. 27, 5 A. 838, 10 Am. St. Rep. 367; 39 A. 777.
Ball Beckwith and C. P. McIntyre, all of Montgomery, for appellees.
Charge 11, given for defendants, was a correct proposition of law. 153 Ala. 13, 45 So. 246; 153 Ala. 586, 44 So. 1023, 127 Am. St. Rep. 71; 143 Ala. 411, 39 So. 136. Charge 15, given for defendants, correctly states the law applicable to this subject. 21 Cyc. 791; 151 Ala. 355, 43 So. 867; 140 Ala. 84, 37 So. 105; 128 Ala. 589, 29 So. 596. Even if abstract, charges 11 and 15, were not error, when considered in connection with the oral charge of the court.
Appellant sued appellees for damages for wrongfully causing the death of her intestate by wrongfully shooting him with a gun. There was verdict and judgment for the defendants, from which plaintiff prosecuted this appeal. The cause has previously been before this court (Rich v. Brewer, 205 Ala. 343, 87 So. 323), but the holding upon former appeal is without material bearing upon the questions now presented.
The first two assignments of error presented for consideration in the argument of counsel for appellant relate to the action of the court in giving, at the request of defendants, charges 11 and 15, which will be set out in the report of the case. As we construe and understand these charges, they each state correct abstract propositions of law. It is without dispute that defendant Varner fired the fatal shot, and that defendants Rich and Baltzer were present with him at the time. There was evidence further tending to show that these two latter named defendants had entered into a conspiracy with Varner to accomplish the death of the deceased. On the other hand, there was evidence for the defendants tending to show that they entered into no conspiracy whatever, did not aid or abet by word or act or otherwise the taking of the life of the deceased, but that it merely happened that they were present at the time.
In the light of this evidence these defendants requested charge 11, to the effect that their mere presence at this particular time was not sufficient to make them responsible for the act. As we construe the charge, in the light of the testimony in the case and from the viewpoint of this defense, it means that the fact of their presence at the time of the killing, standing alone and unaided by any proof tending to show that they aided or abetted by word or act or otherwise in the unlawful act, or had entered into any conspiracy with reference thereto, did not suffice to fix liability upon them. We do not think the charge is subject to the infirmities insisted upon by counsel for the appellant; but, if it has any vice, it is the fact that it might have been misleading. When considered, however, in connection with the oral charge of the court, it appears quite clear that the jury were not misled thereby — certainly not to the prejudice of this appellant.
Nor do we consider the giving of charge 15 reversible error. There was evidence for the defendants tending to show that the deceased, Brewer, brought on the difficulty, and was in the act of making felonious and unlawful assault upon some one of those occupying the automobile when he was shot by Varner, and that there was no reasonable avenue of escape open to any of the defendants. True, the charge does not hypothesize the different elements of self-defense, nor state in so many words that the defendants must have been entirely free from fault, and we think it may well have been refused; but these elements must have been understood by the jury as being embraced within the language of the charge, where it says "that said Brewer was about to unlawfully and feloniously shoot one or more of the defendants." If, as hypothesized in the charge, the act of Brewer was unlawful and felonious, then clearly Brewer would not be acting in self-defense.
For like reason, the charge is not subject to the construction that, under the facts hypothesized, the jury should find for the defendants, notwithstanding defendants deliberately and maliciously brought on the difficulty. The charge was merely intended to instruct the jury upon that phase of the case upon which defendants rested for defense, and in support of which they had offered proof. As an abstract proposition of law it is correct, although it may have had a tendency to mislead, and the court may have been justified in the refusal. The giving of this charge, however, will not constitute reversible error (Heningburg v. State, 153 Ala. 13, 45 So. 246; Cent. of Ga. v. Hyatt, 151 Ala. 355, 43 So. 867), for we are well satisfied it did not mislead or confuse the jury, especially in view of the oral charge of the court, and charges given for plaintiff which appear in the report of the case, together with that portion of the oral charge here pertinent. The given charges, above referred to, which will appear by way of illustration, are charges 4 and 5, and E, G, and F.
The remaining assignment of error relates to the action of the court in overruling the motion for a new trial upon the ground of alleged improper and illegal argument of opposing counsel upon the trial of the cause. Counsel for appellees insist that this question cannot be reviewed by reason of the manner of its presentation, as disclosed by the record. We pass that question by without decision, as unnecessary to be determined. The argument of counsel has been duly considered by the court in connection with the very explicit instructions correcting the same, given by the trial court to the jury at plaintiff's request. Conceding, without deciding, that the question is presented, and that the argument was improper, yet we are fully persuaded that it was not of such a character as was ineradicable and harmful to such extent as could not be remedied by due and timely admonitions from the trial judge. We are of the opinion that due correction was made, which was sufficient to remove any harmful effect, and that in no event was prejudicial error shown.
Finding no reversible error, the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and MILLER, JJ., concur.
SAYRE, J., dissents.
THOMAS, J., not sitting.