Opinion
7 Div. 615.
February 18, 1930.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Jim Huff was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Charge 7, refused to defendant, is as follows:
"7. I charge you gentlemen of the jury, that it was not necessary that the defendant Jim Huff should have been actually in danger of death or great bodily harm at the time he shot Pounds in order for him to be justified in shooting Pounds. He had the right to act on the appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of Pounds in the light of any threat that the evidence proved Pounds to have made against the defendant. If the circumstances attending the shooting were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had the right to shoot Pounds in his own defense, although as a matter of fact, he was not in actual danger, and, if the jury believe that the defendant Jim Huff acted under such conditions and circumstances as set out above, the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and, if not shown, the jury should acquit the defendant."
Harvey A. Emerson and S.W. Tate, both of Anniston, for appellant.
Charge 7 is a correct statement of law as applied to the facts and circumstances of this case, and its refusal was error to reverse. Davis v. State, 214 Ala. 273, 107 So. 737; Bell v. State, 20 Ala. App. 425, 104 So. 443; Cox v. State, 19 Ala. App. 205, 96 So. 83; Bluett v. State, 151 Ala. 41, 44 So. 84; Bluitt v. State, 161 Ala. 14, 49 So. 854; Chaney v. State, 178 Ala. 44, 59 So. 604; Thomas v. State, 18 Ala. App. 493, 93 So. 287; Glass v. State, 201 Ala. 441, 78 So. 819. While the fact of prior difficulty was admissible, it was error to admit the details of the prior difficulty. Wells v. State, 187 Ala. 1, 65 So. 950; McAnally v. State, 74 Ala. 9; Smith v. State, 197 Ala. 193, 72 So. 316; Thornton v. State, 18 Ala. App. 225, 90 So. 66; Lambert v. State, 208 Ala. 42, 93 So. 708; Garrett v. State, 76 Ala. 18; Richardson v. State, 191 Ala. 21, 68 So. 57. The res gestæ of a homicide consists of such circumstances or declarations as arise from or during the altercation resulting in the slaying, are contemporaneous with it, and serve to illustrate its character. Garrett v. State, 76 Ala. 18; Hardeman v. State, 14 Ala. App. 35, 70 So. 979; Dudley v. State, 185 Ala. 27, 64 So. 309. A conviction for distilling does not involve moral turpitude. Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A.L.R. 338; Lakey v. State, 206 Ala. 180, 89 So. 605. It is not necessary that a man retreat from his own room or home. Crawford v. State, 112 Ala. 1, 21 So. 214; Harris v. State, 96 Ala. 24, 11 So. 255; Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am. St. Rep. 17; Christian v. State, 96 Ala. 91, 11 So. 338; Roberts v. State, 68 Ala. 156.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Under the facts in this case, the defendant was in his own room at the time of the fatal shooting, and was under no duty to retreat, if he was free from fault in bringing on the difficulty. Harris v. State, 96 Ala. 24, 11 So. 255.
The evidence for the defendant tended to prove his plea of self-defense. Under this state of the evidence the court refused to give at the request of defendant in writing charge 7. This was error to a reversal. Bell v. State, 20 Ala. App. 425, 104 So. 443; Davis v. State, 214 Ala. 273, 107 So. 737.
The court evidently fell into error on the question of the burden of proof as to freedom from fault in provoking the difficulty. It appears in the oral charge that the court instructed the jury: "He must show that he was free from fault in bringing on the difficulty." This is not the law. The defendant must be free from fault in provoking the difficulty, in order to be entitled to invoke the doctrine of self-defense, but the burden of proof in this regard rests on the state and not the defendant.
The contention in brief that the court erred in admitting evidence of the details of a prior difficulty cannot here be considered, for the reason that no exceptions were properly reserved.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.