Summary
In Robinson v. State, 106 So. 134, 213 Ala. 691, this court approved the refusal of a charge much like this, charge 4 in that case; but that charge omitted to predicate consideration of "all the evidence."
Summary of this case from Davis v. StateOpinion
4 Div. 245.
November 12, 1925.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Ballard Brassell, of Troy, for appellant.
The refusal of defendant's requested charges was error. Charges B and D: Thomas v. State, 13 Ala. App. 50, 69 So. 315. Charge 3: Twitty v. State, 168 Ala. 59, 53 So. 308; Kirkley v. State, 19 Ala. App. 570, 99 So. 56; Black v. State, 5 Ala. App. 87, 59 So. 692. Charge 4: Bluitt v. State, 161 Ala. 14, 49 So. 854; Black v. State, supra; O'Rear v. State, 188 Ala. 71, 66 So. 81.
Harwell G. Davis, Atty. Gen., and Robert G. Tate, Asst. Atty. Gen., for the State.
Charges requested by defendant were refused without error. Edwards v. State, 205 Ala. 160, 87 So. 179.
Exceptions to rulings on the admission of evidence, either brought corrections by the trial court, or the rulings were obviously correct, or were not of such materiality as to justify a reversal on their account.
The killing occurred within the dwelling house of Eula Allen, where the evidence adduced on behalf of defendant went to show that he was an invited guest — did unquestionably show at least that he was there with the consent and approval of the proprietor or occupant. In its oral charge, the court instructed the jury in regard to the general doctrine of retreat as affecting defendant's right to act in self-defense, but the bearing upon that right of the fact that defendant was a guest in the dwelling house of Eula Allen and that deceased went there as an armed intruder, the legal bearing of these facts upon defendant's asserted right to act in self-defense was not stated to the jury. The evidence adduced by defendant in support of his contention — of which the jury were the judges — called for a statement of the law, in substance, that, if he was a guest in the house and deceased an armed intruder, and if, without fault on his part, he was assaulted or by conduct deceased indicated his purpose to assault him with a deadly weapon, then defendant was under no duty to retreat, but had the right to stand his ground and defend himself, even to the taking of the life of his assailant. Crawford v. State, 112 Ala. 1, 21 So. 214; Jacobs v. State, 146 Ala. 103, 42 So. 70. By his charge B, defendant sought to have this law stated to the jury; but the hypothesis of the charge was that defendant was "there by invitation of the deceased." There was no evidence to support this hypothesis, and the charge was properly refused.
Defendant's requested charge D was faulty as an instruction to the jury, for the reason that it failed to hypothesize that deceased did attack or was about to attack defendant. There was evidence for the state tending to show that deceased made no aggressive movement or gesture with the gun he had in his hand, but was in the act of turning away at the moment he was shot. This, of course, was for the jury, but the requested instruction should have hypothesized the imminence of defendant's peril.
Defendant's charge 1 was, in substance, a "reasonable doubt" charge, and was covered by the court's oral charge. There was, for this reason, no reversible error in its refusal.
Charge 2 was faulty in that it assumed that there was a necessity to strike in defense of life or limb. As we have pointed out, that was in dispute in the evidence.
Charge 3 failed to state that defendant was free from fault.
Charge 4 placed undue emphasis on the evidence of threats, and for this reason was properly refused.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.