Opinion
6 Div. 244.
December 22, 1932.
Appeal from Circuit Court, Blount County; W. J. Martin, Judge.
P. A. Nash, of Oneonta, and A. A. Griffith, of Cullman, for appellant.
It was error for the court to refuse defendant's requested charge A; the testimony being such as to authorize the jury to conclude that deceased made a sudden unprovoked attack on defendant with a deadly weapon. Walker v. State, 220 Ala. 544, 126 So. 848. Where a witness has made a statement as to the facts in regard to an offense and afterwards, through duress, fraud, or persuasion, the witness is induced to make a different statement and to testify as to a different statement of facts, it is admissible to bring out all facts and circumstances and acts of the officers or other persons whereby such different statement is obtained.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The requested charges refused to defendant were fairly and substantially covered by the oral charge of the court and charges given at defendant's request, and the refusal of such charges was not error. Code 1923, § 9509. The jury had received full benefit of the testimony that the state's witness had made former statements which varied from the testimony given on the trial. There was no error in rulings as to evidence concerning these statements.
While the duty to retreat, generally speaking, is an essential element of self-defense, there is a well-recognized exception to the general rule, and that is, when a person is in actual or apparent imminent peril of losing his life, or of serious bodily harm from an assault by the deceased which was unprovoked and manifestly murderous in character, and deceased was then in the act of effectuating his murderous purpose by the use of a deadly weapon, the defendant is under no duty to retreat, but may stand his ground and defend himself. Scruggs v. State, 224 Ala. 328, 140 So. 405, Walker v. State, 220 Ala. 544, 126 So. 848, Beasley v. State, 181 Ala. 28, 61 So. 259, Matthews v. State, 192 Ala. 1, 68 So. 334.
While there was a conflict in the evidence, the defendant's proof showed that at the time the defendant fired the fatal shot the deceased was making an unprovoked effort to shoot him with a pistol, and, this being true, the trial court erred in refusing his requested charge A.
This charge was not covered by the given charges or the oral charge of the trial court. Indeed, the excepted to portion of the oral charge indicated that the duty to retreat was placed on this defendant whether or no, thus, in effect, ignoring his theory and proof connected with the homicide.
One of the state's most important witnesses, "Mrs. Lee Hathcoat," admitted upon cross-examination that she had previously made or signed a statement which was flatly contradictory of her present testimony, and the defendant got the benefit of this contradictory statement. She also made a second statement, and, if it was contradictory of the first statement and corroborative of her testimony, the defendant should have been permitted to show any attendant facts or circumstances inducing her to change from the first to the second statement and which probably influenced her testimony on the trial, but the record fails to show the nature or contents of the second statement, and the trial court cannot be put in error for declining to let the defendant show the circumstances under which it was made. We do not think that the trial court committed reversible error upon any of the rulings upon the evidence.
We have examined all of the defendant's refused charges, and think that charge 2, like charge A, should have been given. The others were either faulty or covered by the oral charge or the defendant's given charges.
The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.