This appellant's trial under an indictment charging murder in the first degree resulted in a verdict and judgment of guilty of murder in the second degree.
The evidence presented by the State tends to show that the appellant and the deceased, after both had been drinking, had a difficulty in the home of the deceased.
The two parties lived next door to each other. The appellant's wife was called to the scene by the deceased's wife.
The appellant and his wife left the house of the deceased, and the appellant went into his home.
According to witnesses for the State the deceased, dressed only in his underwear, then picked up a telephone which was on an extension wire, carried the phone to his front porch, and was in the act of calling the police when the appellant returned, stood at the steps of the porch and fired three shots at the deceased. The deceased was mortally struck and fell onto a glider on the porch.
Under the defendant's own testimony he was unarmed at the time of the original difficulty. When he returned with the pistol he maintained that he went only to his property line; that the deceased at this time was on his porch with a "short" ax in his hand and approached the appellant, cursing, and with the ax raised. The appellant fired when the deceased was twenty feet away, but still on his porch.
Rulings by the court were invoked on very few occasions in the trial below, and the only points presented by the record pertain to the action of the trial court in sustaining the State's objections to questions propounded by the defense to defendant's witnesses seeking to elicit testimony concerning prior threats by the deceased towards the accused, prior difficulties between the deceased and the accused, and the deceased's reputation for peace and quietude.
The appellant in this case, under his own testimony, is in no position to invoke the doctrine of self-defense.
In Watkins v. State, 89 Ala. 82, 8 So. 134, 135, we find the clearest statement of the principles applicable to this case. In the Watkins case the court, at the request of the State, gave the following charge:
The defendant excepted to the giving of this charge.
In affirming the case, McClellan, J., as to the principle enunciated in the charge wrote:
The above doctrine fully supports the action of the trial court in its rulings in the instances above mentioned.