(Supreme Court of Alabama. Nov. 6, 1924.) gree, instruction to acquit if jury was not sat

Ala.)

ORR v. STATE
(102 So.)

16. Homicide 300(4) Requested charge that citizen has right to protect himself from illegal assault held argumentative.

In prosecution for murder in second degree, requested charge that person has right to protect himself from illegal assault, using so much force as is necessary in order to repel such assault, held argumentative.

Certiorari denied by Supreme Court in Ex parte Orr, 102 So. 61.

Defendant was the engineer and deceased the flagman or a passenger train running When this train through Fayette county. stopped at the station of Bangston a difficulty ensued between these two, which was stopped by bystanders. Following this altercation, it appears, defendant in returning to his engine kicked the cap of deceased and picked up his oil can. Whereupon deceased struck defendant, and defendant struck deceased in or under the eye with the spout of the oil can, from which death resulted on the following day.

was

On examination of defendant he asked: "Did you have any idea you would strike him in the eye?" The ruling of the court sustaining the state's objection thereto is reserved as error.

These charges were given at the request of the state:

defense."

17. Homicide 300 (4)-Requested charge as to whether words could be considered as "1. I charge you that a defendant must be starting of difficulty held argumentative. entirely free from fault in bringing on the difRequested charge that words not reason-ficulty, before he can set up the plea of selfably calculated to produce difficulty are not to be considered as starting it held argumentative. 18. Criminal law 807 (1)-Requested charge not to consider whether there had been or would be other violent deaths in county held argumentative.

In prosecution for murder in second degree, requested charge that jury could not consider whether there had been or would be other deaths by violence in county held argumentative.

19. Criminal law 778(4)-Requested charge as to presumption of innocence of accused in mind of juror held argumentative.

In prosecution for murder in second degree, requested charge that juror had duty to presume innocence of accused, which presumption should continue until overcome by evidence convincing jury beyond reasonable doubt, and, unless presumption was so removed, to acquit, held argumentative.

20. Criminal law 342-Accused may not testify to undisclosed motive for doing unlawful

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

John Orr was convicted of manslaughter in the first degree, and appeals.

Affirmed.

"4. The court charges the jury that a doubt, to justify an acquittal, must be reasonable. It must be an actual and substantial doubt. not a mere possibility or speculation. A reasonable doubt is not a mere possible doubt, because most things relative to human affairs and depending on moral evidence is open to some possible or imaginary doubt.

"5. One who provokes a difficulty, who by his own wrong contributes to a situation out of which arises a necessity to take the life of another to preserve his own, cannot invoke the doctrine of self-defense to justify the homicide he commits in such difficulty; cannot plead a necessity to kill which arose from his own wrong."

"7. The court charges the jury that, even though they should find from the evidence that, at the time the defendant struck Woodall, he (John Orr) was in imminent danger of his life, or of suffering great bodily harm, or that the circumstances attending the difficulty were such as to impress the mind of a reasonable man that the defendant was in actual danger, yet, if they also believe from the evidence beyond a reasonable doubt that the defendant entered into the difficulty willingly, and was not without fault in bringing on the difficulty, then his plea of self-defense must fail."

"9. The court charges the jury that, if, after considering all the evidence in this case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and it would be your duty to convict the defendant."

The following requested charges were refused to defendant:

"B. I charge you that an oil can such as the one used in this case is not as a matter of law a deadly weapon."

"E. If you are not satisfied beyond all reasonable doubt by the evidence in this case that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the killing of Woodall was not an accident,, Cornelius, Asst. Atty. Gen., and Curtis, Penyou must acquit the defendant." nington & Pou, of Jasper, for the State.

"1. I charge you that, if the evidence in this case has not been sufficient to convince you beyond all reasonable doubt that defendant had

reasonable ground to believe that the use of the oil can, as used by him, would probably produce the death of deceased, you cannot convict the defendant of any offense as charged in the indictment.

"2. You cannot find from the use of the oil can alone that defendant was prompted by malice in its use.

"3. I charge you cannot convict the defendant in this case of murder in the second degree. "4. I charge you that you cannot convict the defendant in this case of manslaughter in the first degree.

"5. I charge you that you cannot convict defendant in this case of manslaughter in the second degree.

"6. I charge you that, if you have any reasonable doubt in your minds as to whether or not the defendant intended to kill the deceased, you cannot convict him of murder in the second degree nor of manslaughter in the first degree.

"7. I charge you that the law does not presume malice on the part of defendant from the use of an oil can in the manner in which it was used by the defendant in this case."

"10. You cannot infer malice from the use of the spout of engineer's oil can in repelling an assault."

"12. The accidental killing of a human being with an instrument not ordinarily calculated to produce death, is not an offense against the criminal laws of Alabama."

"18. The court charges the jury that if you believe the evidence in this case you will acquit the defendant."

"20. If any member of the jury has in his mind any reasonable doubt as to whether or not the killing of Mr Woodall was an accident, you must acquit the defendant.

"21. Any citizen has a right to protect himself from an illegal assault, and has the right to use as much force as is necessary in order to repel such assault."

"23. I charge you that words which are not reasonably calculated to produce a difficulty are not to be considered as the starting of a difficulty."

"26. I charge you that in considering the guilt or innocence of this defendant you cannot

consider whether or not there has been or will

be any other deaths by violence in Fayette

county."

"28. It is the duty of a juror to come into the jury box with the presumption that the defendant is innocent. It is his further duty to continue to presume the defendant innocent until the state has offered sufficient trustworthy and reliable evidence to convince the jury beyond all reasonable doubt that innocence is wholly

inconsistent with the evidence offered. Unless

such presumption has been so removed by evidence in this case you must acquit the defendant."

Black, Harris & Foster, of Birmingham, and S. T. Wright, of Fayette, for appellant.

SAMFORD, J. [1, 2] Charge 1, requested. by the state, asserts a correct legal proposition, the giving of which by the court was Of the three requisites necessary not error. to establish a plea of self-defense, in such sort as that it may generate a reasonable doubt of defendant's guilt, after a consideration of the entire evidence, the first is that the defendant was entirely free from fault in bringing on the difficulty True, the burden of proving this, that the defendant was not free from fault, is on the state, but that does not affect the rule as stated. 1 Mayfield Dig. p. 807, par. 8; Vaughn v. State, 17 Ala. App. 383, 84 So. 879. Moreover, the charge when given became a part of the court's oral charge, which dealt fully with the law of self-defense.

[3, 4] Charge 4 is palpably an argument, and might have been refused, but is not error to a reversal, and charges 5 and 7, given at the instance of the state, are so clearly the law as not to need discussion.

[5] Charge 9, given at the request of the state, was approved in Prater v. State, 107 Ala. 27, 18 So. 238.

[6] Charge B, requested by the defendant, was invasive of the province of the jury.

[7, 8] Charge E, requested by defendant, was properly refused. If the killing, though an accident, was done while the defendant was making an unlawful assault, he would be guilty of some degree of criminality, and for such could be convicted under this indictment. Sanders v. State, 105 Ala. 4, 16 So. 935.

[9] The vice of charge 1, requested by defendant, lies in the fact that an actual intent to kill is not an essential element necessary to a conviction, if the defendant was at the time engaged in an unlawful act. Sanders v. State, 105 Ala. 4, 16 So. 935; Barnes v. State, 134 Ala. 36, 32 So. 670. Charge F was covered by given charge 11 and by general charge of the court.

[10, 11] Charges 2, 3, 4, 5, 18, and 20 are invasive of the province of the jury. The evidence was conflicting. West v. State, 17

Ala. App. 117.

[12] Charge 6 is not predicated upon a consideration of all the evidence.

[13, 14] Charges 7 and 10 assume as a fact that the oil can, which was the instrument used by defendant in causing the death of deceased, was not a deadly weapon. Under the facts of this case this was a question for the jury. Winter v. State, 123 Ala. 1, 26 So. 949.

[15] Charge 12 assumes the homicide to have been accidental, and that the instrument producing death was not a deadly weapon. The charge was bad. 1 Mayfield

Charges 15 and 16 are covered by given | 3. Railroads charge 11.

[16-19] Charges 21, 23, 26, and 28 are palpably arguments.

Charge 24 is so manifestly bad as not to require citation of authority.

[20] That part of the court's oral charge to which exception was reserved, if tending to error, was corrected by the judge by full It is explanation before the jury retired.

a rule too well settled to require discussion here that a defendant may not testify to an undisclosed motive for doing an unlawful act. Brown v. State, 7 Ala. App. 26, 61 So. 12.

[21] When a witness has violated the rule, and remained in the court room, and in the hearing of the other witnesses, the discretion of allowing such witness to testify is with the trial court, and in the absence of an abuse of this discretion will not be reversed. Webb v. State, 100 Ala. 47, 14 So. 865.

395-General count for frightening horse held to authorize recovery for subsequent negligence in emitting steam.

In action for injuries to horse, count averring in general terms that horse was frightened and ran away owing to negligence of defendant's employees in operating engine, authorized recovery for subsequent negligence consisting in emission of steam from locomotive.

4. Railroads 401 (8)-Charge held errone-
ous as not requiring contributory negligence
to be proximate cause of injury by frighten-
"remote";
ing horse;
"remote cause";
"slightest."

In action for damages from frightening
from locomotive,
horse by escaping steam
charge that, if "condition of the horse, his
* plain-
nervousness, contributed, even in a remote de-
gree, to the injury occasioned, *
tiff would be barred of recovery," held errone-
ous, as not requiring contributory negligence
to be proximate cause of injury; "slightest"
and "remote," as applied to degree of negli-

We find no error in the record, and the gence, being synonymous, "remote" meaning injudgment is affirmed.

Affirmed.

Ex parte John ORR. (6 Div. 256.)

(Supreme Court of Alabama.

Oct. 6, 1924.
Rehearing Denied Nov. 27, 1924.)

Certiorari to Court of Appeals.
Black & Harris, of Birmingham, and S. T.
Wright, of Fayette, for petitioner.

Harwell G. Davis, Atty. Gen., and Curtis,
Pennington & Pou, of Jasper, opposed.

PER CURIAM. Petition of John Orr for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Orr v. State, 102 So. 58. Writ denied.

ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.

considerable, slight, and "remote cause" a cause operating mediately through other causes to produce effect.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Remote -Remoteness; Remote Cause; Slight.]

5. Negligence

82-Plaintiff's

negligence of must be concurring proximate cause injury.

To be available under plea of contributory negligence plaintiff's negligence must be concurring proximate cause of injury, and not remote cause or mere antecedent occasion or condition.

averring 396(1) — Plaintiff 6. Railroads emission of unnecessary volume of steam frightening horse assumed burden of proof.

In action for damages from frightening horse hitched near track, plaintiff, averring emission of unnecessary volume of steam, assumed burden of proving it, and charges imposing such burden were proper.

7. Railroads 360 (2)-Negligent frightening of horses by steam actionable.

When engine is managed in such reckless or negligent manner as to frighten horses and cause them to run away, company is liable for consequences, as where engineer suddenly dis

NEWSOME v. LOUISVILLE & N. R. CO. charges jet of steam near passing team.

(8 Div. 213.)

(Court of Appeals of Alabama. Nov. 5, 1924.) 1. Negligence 119(2)-Specific counts do not authorize recovery on unspecified negli

gence.

8. Trial 194(15)-To knowingly hitch horse in close proximity to track is not contributory negligence.

Charge that to knowingly hitch horse, easily frightened, in close proximity to track, is contributory negligence, held invasive of province of jury.

Under counts specifically setting out initial negligence, plaintiff could not recover for neg-9. Trial 256 (9) — Charge on llability for ligence not specified, or occurring after discovery of peril.

2. Negligence 119 (7)-Subsequent negligence provable under general count. Subsequent negligence may be proved under count alleging negligence generally.

frightening horse by steam held proper.

In action for damages resulting from frightening horse, charge that defendant had right to use the track along the street, and in such use to make the usual noises and emission of steam which were incident to operation

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of its engine, was not error in absence of re- unnecessarily caused by the defendant's agents quest for explanatory charge.

10. Railroads 360(2)-Charges on liability for frightening horse by operation of train, held proper.

In action for damages resulting from frightening of horse hitched near track, certain charges exonerating defendant from results of reasonable operation of trains, and requiring plaintiff to prove unnecessary emission of steam, held proper.

11. Appeal and error 1064(1)-Charge, in action for injuries to horse hitched near track, held not reversible error though argumentative.

In action for damages from frightening of horse hitched near track, charge "noise may be unusual to persons and horses not accustomed to it, and usual as signals and incident to running, movements, and operations of an engine," being a correct statement of law, though argumentative, was not reversible.

12. Evidence 474 (19)-Owner may testify as to value.

One not an expert may testify as to value of horse which he has owned and knows well. 13. Evidence ~471(2)—Comparison of horse with others owned by witness held mere con

clusion.

In action for injuries to horse, statement of witness, "I think he was as good a horse as I ever drove," was properly excluded as mere conclusion.

or servants.

"4. I charge you, gentlemen of the jury, that noise may be unusual to persons and horses not accustomed to it, and usual as signals and incident to the running, movements, and operations of an engine.

"5. I charge you, gentlemen of the jury, that the authority to operate a railroad includes the right to make the noises incident to the movement and operation of its engine, as in the case of escape of steam and rattling of cars; and also to give the usual and proper admonitions of danger, as in the sounding of whistles, and the ringing of bells, and a railroad, in the exercise of such rights is not liable for injuries occasioned by horses, when being driven or hitched along the highway, taking fright at noises occasioned by the lawful and reasonable exercise of its rights and duties, and I charge you that the plaintiff's horse hitched upon the highway, and the defendant operating its trains over the tracks, were each bound to use their privileges with reasonable precautions, prudence, and diligence, and the defendant had the right to make all the reasonable and usual noises incident to the running of its train.

plaintiff to establish by the evidence, to your "6. I charge you that it is the duty of the reasonable satisfaction, that the act complained of was unnecessary, and if you are not so reasonably satisfied from the evidence that this act was so shown, your verdict should be for

Appeal from Circuit Court, Morgan Coun- the defendant. ty; James E. Horton, Jr., Judge.

Action by T. J. Newsome against the Louisville & Nashville Railroad Company for damages resulting from the frightening of a horse by a locomotive engine. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On the trial of the case defendant's witness Stubblefield testified that he had owned the horse in question, and that the horse was skittish and scared of locomotives, that he saw the horse shortly before the injury and he seemed to be in good shape; and that "I think he was about as good a horse as I ever drove." On motion of defendant, the court excluded the quoted statement, and to this ruling plaintiff reserved an exception. These charges were given at defendant's request:

"1. I charge you, gentlemen, that the butden of proof is on the plaintiff to prove to your reasonable satisfaction that there was an unusual emission of steam, or that the engine in its operation, made an unusual or unnecessary noise.

"2. The defendant has as much right to use the track on the street as plaintiff had to use the street, and defendant is not liable for the injuries caused by the frightening of the horse unless the evidence shows to your reasonable satisfaction that an escape of the steam was

"7. I charge you, gentlemen of the jury, that the burden of proof is upon the plaintiff to making of noise complained of was unnecesprove to your reasonable satisfaction, that the sary to the skillful operation of defendant's engine.

"8. I charge you, gentlemen of the jury, that the defendant had the right to use the track along the street at the time of this occurrence, and it had the right in the use of the said track,

to make the usual noises and emission of steam which are incident to the operation of its engine.

"9. I charge you, gentlemen of the jury, if you believe from the evidence that the plaintiff knowingly hitched a horse, easily frightened, in close and dangerous proximity to defendant's track, then he would be guilty of contributory negligence.

"10. I charge you, gentlemen of the jury, that the defendant in this case had the right to use its tracks and to make all the usual noises incident to the running and moving of its engine, and to make all the usual emissions of steam which is incident to the running and moving of its train, and if you are reasonably satisfied from the evidence that only such amount of steam was emitted, and only such noises were made, then it is your duty to return a verdict for the defendant."

"A. I charge you, gentlemen of the jury, that railroad companies had [have] a right to operate their trains; that such companies have the right to make all the usual noises and emis