killing rebuts presumption in Alabama

1997Section 13A-11-71, Ala.Code 1975, which was originally enacted in 1936 (See Ala. Acts 1936, Ex.Sess., Act No. 82, p. 51) provides in part: “In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.” In Wright , the Alabama Supreme Court cited Hornsby v. State, 94 Ala. 55, 66 , 10 So. 522 , 526 (1892) (quoting Mitchell v. State, 60 Ala. 26, 28 (1877)), in support of its holding that it was “‘error to charge the

1997Section 13A-11-71, Ala.Code 1975, which was originally enacted in 1936 (See Ala. Acts 1936, Ex.Sess., Act No. 82, p. 51) provides in part: “In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.” In Wright , the Alabama Supreme Court cited Hornsby v. State, 94 Ala. 55, 66 , 10 So. 522 , 526 (1892) (quoting Mitchell v. State, 60 Ala. 26, 28 (1877)), in support of its holding that it was “‘error to charge the

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1977In Miller v. State, 38 Ala.App. 593 , 90 So.2d 166 , this Court held: “ ‘Legal malice’ as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption.” The conflict in the evidence presented a question for the jury to determine, and the evidence was sufficient, if believed by the jury to the required degree, to support the verdict.

1977In Miller v. State, 38 Ala.App. 593 , 90 So.2d 166 , this Court held: “ ‘Legal malice’ as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption.” The conflict in the evidence presented a question for the jury to determine, and the evidence was sufficient, if believed by the jury to the required degree, to support the verdict.

1957In Cooley v. State, 233 Ala. 407 , 171 So. 725, 727 , the court said: "But it is well settled that, when one kills another by the intentional use of a deadly weapon, malice, design, and motive may be inferred without more, and are presumed, unless the evidence which proves the killing rebuts the presumption, and casts on defendant the burden of rebutting it, and to show self-defense or other justification if he can. * * *" As authority for his contention that the circumstances of the killing disprove malice, appellant cites and relies on McDowell v. State, 238 Ala. 482 , 191 So. 894 ; Smith v.

1957In Cooley v. State, 233 Ala. 407 , 171 So. 725, 727 , the court said: "But it is well settled that, when one kills another by the intentional use of a deadly weapon, malice, design, and motive may be inferred without more, and are presumed, unless the evidence which proves the killing rebuts the presumption, and casts on defendant the burden of rebutting it, and to show self-defense or other justification if he can. * * *" As authority for his contention that the circumstances of the killing disprove malice, appellant cites and relies on McDowell v. State, 238 Ala. 482 , 191 So. 894 ; Smith v.

1997However, the whole line of caselaw that Wright was based upon was, in turn, founded upon the premise, set out in Hadley v. State, 55 Ala. 31 (1876), that a homicide defendant bore the onus of proving that a killing was committed in self-defense.

1950Hadley v. State, 55 Ala. 31 ; Hornsby v. State, 94 Ala. 55 , 10 So. 522 ; Cooley v. State, 233 Ala. 407 , 171 So. 725 ; McDowell v. State, 238 Ala. 482, 483 , 191 So. 894 .

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1957In Cooley v. State, 233 Ala. 407 , 171 So. 725, 727 , the court said: "But it is well settled that, when one kills another by the intentional use of a deadly weapon, malice, design, and motive may be inferred without more, and are presumed, unless the evidence which proves the killing rebuts the presumption, and casts on defendant the burden of rebutting it, and to show self-defense or other justification if he can. * * *" As authority for his contention that the circumstances of the killing disprove malice, appellant cites and relies on McDowell v. State, 238 Ala. 482 , 191 So. 894 ; Smith v.

1957In Cooley v. State, 233 Ala. 407 , 171 So. 725, 727 , the court said: "But it is well settled that, when one kills another by the intentional use of a deadly weapon, malice, design, and motive may be inferred without more, and are presumed, unless the evidence which proves the killing rebuts the presumption, and casts on defendant the burden of rebutting it, and to show self-defense or other justification if he can. * * *" As authority for his contention that the circumstances of the killing disprove malice, appellant cites and relies on McDowell v. State, 238 Ala. 482 , 191 So. 894 ; Smith v.

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1940There are cases where the above quotation could, perhaps, be given without error; but where the facts would justify a finding of guilt in a lower degree, or an acquittal, the charge is erroneous unless it has coupled with it the additional statement “unless the evidence which proves the killing rebuts the presumption.” In Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 526, in a case using a charge similar to the one at Bar it was said: “Whenever there are any facts testified to on a trial for murder, and which are necessary and are relied upon to sustain the charge of murder, and a jury could leg

1940There are cases where the above quotation could, perhaps, be given without error; but where the facts would justify a finding of guilt in a lower degree, or an acquittal, the charge is erroneous unless it has coupled with it the additional statement “unless the evidence which proves the killing rebuts the presumption.” In Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 526, in a case using a charge similar to the one at Bar it was said: “Whenever there are any facts testified to on a trial for murder, and which are necessary and are relied upon to sustain the charge of murder, and a jury could leg

1950Hadley v. State, 55 Ala. [31], 37; Mitchell v. State, 60 Ala. [26], 28; Gibson v. State, 89 Ala. 121 , 8 So. 98 [ 18 Am.St.Rep. 96 ].” It is true that the phrase, “ ‘formed design’ to take life,” under our most recent decisions has been held not necessarily to connote all the elements of murder in the first degree.

1938Hadley v. State, 55 Ala. 31 ; Gibson v. State, 89 Ala. 121 , 8 So. 98 , 18 Am.St.Rep. 96 ; Hornsby v. State, 94 Ala. 55, 66 , 10 So. 522 , and a host of recent cases; 11 Alabama Digest, Homicide, 345, ^=>151 (3).

1997Section 13A-11-71, Ala.Code 1975, which was originally enacted in 1936 (See Ala. Acts 1936, Ex.Sess., Act No. 82, p. 51) provides in part: “In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.” In Wright , the Alabama Supreme Court cited Hornsby v. State, 94 Ala. 55, 66 , 10 So. 522 , 526 (1892) (quoting Mitchell v. State, 60 Ala. 26, 28 (1877)), in support of its holding that it was “‘error to charge the

1997Section 13A-11-71, Ala.Code 1975, which was originally enacted in 1936 (See Ala. Acts 1936, Ex.Sess., Act No. 82, p. 51) provides in part: “In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.” In Wright , the Alabama Supreme Court cited Hornsby v. State, 94 Ala. 55, 66 , 10 So. 522 , 526 (1892) (quoting Mitchell v. State, 60 Ala. 26, 28 (1877)), in support of its holding that it was “‘error to charge the

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1977Young v. State, 283 Ala. 676 , 220 So.2d 843 ; Harris v. State, 48 Ala.App. 723 , 267 So.2d 512 ; Brand v. State, 46 Ala. App. 41 , 237 So.2d 524 ; Pugh v. State, 51 Ala.App. 164 , 283 So.2d 616 .

1960It is of course fundamental that malice may be presumed from the use of a deadly weapon, unless “the circumstances of the killing disprove malice.” Dixon v. State, 128 Ala. 54 , 29 So. 623 , 624, or as otherwise stated “the evidence which proves the killing rebuts the presumption.” Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 526; Simpson v. State, 31 Ala.App. 150 , 13 So.2d 437 .

1960It is of course fundamental that malice may be presumed from the use of a deadly weapon, unless “the circumstances of the killing disprove malice.” Dixon v. State, 128 Ala. 54 , 29 So. 623 , 624, or as otherwise stated “the evidence which proves the killing rebuts the presumption.” Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 526; Simpson v. State, 31 Ala.App. 150 , 13 So.2d 437 .

1951This principle has been followed and applied by this court and the Court of Appeals in a number of cases, among them Berry v. State, 209 Ala. 120 , 95 So. 453 ; Wright v. State, 252 Ala. 46 , 39 So.2d 395 ; Chenault v. State, 29 Ala.App. 148 , 193 So. 326 .

1951This principle has been followed and applied by this court and the Court of Appeals in a number of cases, among them Berry v. State, 209 Ala. 120 , 95 So. 453 ; Wright v. State, 252 Ala. 46 , 39 So.2d 395 ; Chenault v. State, 29 Ala.App. 148 , 193 So. 326 .

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St

1915Rep. 96 ; Rogers v. State, 117 Ala. 9 , 22 South. 666 . (16) But, where the evidence which proves the killing rebuts the presumption of malice, or affords room for an inference to be drawn by the jury that tends to rebut the presumption, or where the evidence is wholly circumstantial, and the character of the weapon, the circumstances attending the homicide, and the motive therefor rest in inferences to be drawn by the jury from the circumstances proven, the' court should give in charge to- the jury the law on all degrees of intentional homicide. —Fowler v. State, 161 Ala. 1 , 49 South. 788 ;

1915Rep. 96 ; Rogers v. State, 117 Ala. 9 , 22 South. 666 . (16) But, where the evidence which proves the killing rebuts the presumption of malice, or affords room for an inference to be drawn by the jury that tends to rebut the presumption, or where the evidence is wholly circumstantial, and the character of the weapon, the circumstances attending the homicide, and the motive therefor rest in inferences to be drawn by the jury from the circumstances proven, the' court should give in charge to- the jury the law on all degrees of intentional homicide. —Fowler v. State, 161 Ala. 1 , 49 South. 788 ;

1915Rep. 96 ; Rogers v. State, 117 Ala. 9 , 22 South. 666 . (16) But, where the evidence which proves the killing rebuts the presumption of malice, or affords room for an inference to be drawn by the jury that tends to rebut the presumption, or where the evidence is wholly circumstantial, and the character of the weapon, the circumstances attending the homicide, and the motive therefor rest in inferences to be drawn by the jury from the circumstances proven, the' court should give in charge to- the jury the law on all degrees of intentional homicide. —Fowler v. State, 161 Ala. 1 , 49 South. 788 ;

1915Rep. 96 ; Rogers v. State, 117 Ala. 9 , 22 South. 666 . (16) But, where the evidence which proves the killing rebuts the presumption of malice, or affords room for an inference to be drawn by the jury that tends to rebut the presumption, or where the evidence is wholly circumstantial, and the character of the weapon, the circumstances attending the homicide, and the motive therefor rest in inferences to be drawn by the jury from the circumstances proven, the' court should give in charge to- the jury the law on all degrees of intentional homicide. —Fowler v. State, 161 Ala. 1 , 49 South. 788 ;

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1983Coates v. State , 1 Ala. App. 35 , 56 So. 6 ; Warren v. State , [ 34 Ala. App. 447 , 41 So.2d 201 (1949)], supra." Harris v. State , 56 Ala. App. 301 , 306 , 321 So.2d 267 , 272 (Ala.Cr.App. 1975). *Page 506 The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought.

1982Thompson v. State , 376 So.2d 761 , 764 (Ala.Cr.App.), reversed on other grounds, Ex parte Thompson , 376 So.2d 766 (Ala. 1979); Hardin v. State , 344 So.2d 234 , 238 (Ala.Cr.App. 1977).

1982Thompson v. State , 376 So.2d 761 , 764 (Ala.Cr.App.), reversed on other grounds, Ex parte Thompson , 376 So.2d 766 (Ala. 1979); Hardin v. State , 344 So.2d 234 , 238 (Ala.Cr.App. 1977).

1982Thompson v. State , 376 So.2d 761 , 764 (Ala.Cr.App.), reversed on other grounds, Ex parte Thompson , 376 So.2d 766 (Ala. 1979); Hardin v. State , 344 So.2d 234 , 238 (Ala.Cr.App. 1977).

1974Tolen v. State, 49 Ala. App. 353 , 272 So.2d 279 .

1974Tolen v. State, 49 Ala. App. 353 , 272 So.2d 279 .

1973Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words “unless the circumstances of the killing disprove malice.” Baker v. State, 33 Ala.App. 596 , 36 So.2d 239 , cert. denied 251 Ala. 65 , 36 So.2d 241 .

1973Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words “unless the circumstances of the killing disprove malice.” Baker v. State, 33 Ala.App. 596 , 36 So.2d 239 , cert. denied 251 Ala. 65 , 36 So.2d 241 .

1973Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words “unless the circumstances of the killing disprove malice.” Baker v. State, 33 Ala.App. 596 , 36 So.2d 239 , cert. denied 251 Ala. 65 , 36 So.2d 241 .

1973Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words “unless the circumstances of the killing disprove malice.” Baker v. State, 33 Ala.App. 596 , 36 So.2d 239 , cert. denied 251 Ala. 65 , 36 So.2d 241 .

1972Or, as was said by Bricken, P. J., in Barnett v. State, 21 Ala.App. 646 , 111 So. 318 , to be guilty of second degree murder defendant must have fired the fatal shot willfully, intentionally, and maliciously.

1972Or, as was said by Bricken, P. J., in Barnett v. State, 21 Ala.App. 646 , 111 So. 318 , to be guilty of second degree murder defendant must have fired the fatal shot willfully, intentionally, and maliciously.

1965Cooley v. State, 233 Ala. 407 , 171 So. 725 ; Colvin v. State, 39 Ala.App. 355 , 102 So.2d 911 ; Fort v. State, 37 Ala.App. 91 , 64 So.2d 604 ; Langley v. State, 32 Ala.App. 163 , 22 So.2d 920 ; Tolbert v. State, 31 Ala.App. 301 , 15 So.2d 745 ; Moore v. State, 31 Ala.App. 483 , 18 So.2d 803 ; Austin v. State, 30 Ala.App. 267 , 4 So.2d 442 ; Coates v. State, 29 Ala.App. 616 , 199 So. 830 .

1965Cooley v. State, 233 Ala. 407 , 171 So. 725 ; Colvin v. State, 39 Ala.App. 355 , 102 So.2d 911 ; Fort v. State, 37 Ala.App. 91 , 64 So.2d 604 ; Langley v. State, 32 Ala.App. 163 , 22 So.2d 920 ; Tolbert v. State, 31 Ala.App. 301 , 15 So.2d 745 ; Moore v. State, 31 Ala.App. 483 , 18 So.2d 803 ; Austin v. State, 30 Ala.App. 267 , 4 So.2d 442 ; Coates v. State, 29 Ala.App. 616 , 199 So. 830 .