Opinion
2 Div. 912.
April 7, 1927.
Appeal from Circuit Court, Sumter County; John McKinley, Judge.
Thos. F. Seale and George O. Miller, both of Livingston, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
No briefs reached the Reporter.
The defendant objected to going to trial because no copy of the indictment had been served upon him. We have carefully compared what purports to be the copy served with the indictment, and find no variance or discrepancy between the two.
The state had the right to nol pros the third count of the indictment and as to which the defendant could not complain.
The trial court did not err in refusing the general charge requested by the defendant either as to the whole case or the different counts, as there was abundant evidence in support of same.
Charges B, D, and I proceed upon the theory that the defendant was under no duty to retreat, even if he could have safely done so because of being at his place of business. The evidence shows that both the defendant and deceased were employed at the mill; that the fuss started in the closet or toilet; that both came into the mill, and when at or near the railroad track the killing occurred. This was not a place from which the defendant was relieved, under the law, from retreating if he could have safely done so. Perry v. State, 94 Ala. 25, 10 So. 650; Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am. St. Rep. 17; Brake v. State, 8 Ala. App. 102, 63 So. 11. We do not mean to hold that these charges were not otherwise faulty.
Charge A, refused the defendant, if not otherwise bad, omits the fact that the deceased was making an attempt or effort to assault the defendant with the pick.
Charge 8, refused the defendant, if not otherwise bad, instructs for an acquittal, if any juror has a reasonable doubt of his guilt. Pickens v. State, 115 Ala. 42, 22 So. 551; Morrison v. Clark, 196 Ala. 670, 72 So. 305, and cases cited.
There was no error in permitting the state to introduce in evidence the stick or piece of wood with which the defendant struck the deceased.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and BOULDIN, JJ., concur.