Summary
In Glass v. State, 201 Ala. 441, 78 So. 819 (charge 2), Bluett v. State, 151 Ala. 41, 50, 44 So. 84 (charge 26), Richardson v. State, 191 Ala. 21, 68 So. 57 (charge 4), and Buffalow v. State, 219 Ala. 407, 122 So. 633 (charge 3), the charges embraced the element of retreat; and charge 10, approved in Davis v. State, 214 Ala. 273, 277, 107 So. 737, and Watts v. State, 177 Ala. 24, 59 So. 270, omitted any reference to the duty, ability, or reasonably apparent inability to retreat under the rule.
Summary of this case from Smith v. StateOpinion
5 Div. 690.
May 9, 1918.
Appeal from Circuit Court, Chilton County; Leon McCord, Judge.
Longshore, Koenig Longshore and J. B. Adkinson, all of Columbiana, for appellant. F. Loyd Tate, Atty. Gen., for the State.
Appellant was convicted of murder in the first degree, and his punishment fixed at life imprisonment. The defendant's evidence tended to establish his theory of self-defense.
The errors insisted upon by counsel for appellant upon this appeal relate to the refusal of the court to give certain charges requested in writing by the defendant.
Refused charge 2 relates to the elements of self-defense, and has found approval in the decisions of this court. Bluett v. State, 151 Ala. 41, 44 So. 84, wherein refused charge 2 was declared to be correct. Likewise refused charge 4 was approved in Kennedy v. State, 140 Ala. 1, 37 So. 90. Refused charge 9 has also been held correct. Andrews v. State, 159 Ala. 14, 48 So. 858 (thirteenth headnote).
The refusal of these charges was therefore error, and it but remains to ascertain if their refusal was such error as to call for a reversal of the cause under the rule now prevailing in this state that the refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge, or in charges given at the request of the parties. Acts 1915, p. 815.
There were but few charges given at defendant's request and these have been carefully reviewed by the court in consultation, in connection with the oral charge of the court set out in the record.
The conclusion has been reached that, while probably the above-stated rule would save the cause from reversal as to refused charges 4 and 9, yet such cannot be said as to refused charge 2, which dealt with the elements of self-defense and the shifting of the burden of proof upon the state, upon these certain elements of self-defense being established, to show the defendant was not free from fault in bringing on the difficulty. This charge was practically a duplicate of refused charge 26, declared correct in Bluett v. State, supra, and the rule of law therein stated, we conclude, was not substantially and fairly given in the oral charge of the court, or in any charge given for defendant.
It results that the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.