8 Div. 86.
May 9, 1918.
Appeal from Circuit Court, Lawrence County; R. C. Brickell, Judge.
Callahan Harris, of Decatur, for appellant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.
Shortly after defendant had shot deceased, and perhaps while deceased still showed some faint signs of life, the wife of the latter appeared upon the scene. Evidence for the state tended to show that defendant, standing near with his pistol in his hand, told the wife not to go to her husband's body. Evidence for defendant went to show that the knife of deceased lay upon the ground near his body. While defendant was on the stand as a witness his counsel put this question:
"I will ask you whether or not you told her not to go to the body because you wanted the knife identified before the body was moved?"
Afterwards, on the state's motion defendant's affirmative answer was excluded. The record, which we have thus in effect reproduced in order to identify and make clear the first exception argued for appellant, shows no error. What passed between defendant and the wife of deceased was not any part of the res gestæ of the killing — the wife was some distance away when the shooting occurred — and the testimony which defendant sought to keep before the jury was nothing more than a statement of the defendant's undisclosed purpose or motive in ordering the wife of deceased to stay away from his body, testimony which was inadmissible according to a long line of adjudicated cases in this state, many of which were noted in Western Union Tel. Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534.
In its oral charge the court, stating the doctrine of retreat as a part of the law of self-defense, said to the jury that "there must have been no way of retreat open to the defendant." Not to be too critical, it may be said, perhaps, that a more satisfactory statement of the doctrine would have been that there must have been no avenue of escape reasonably apparent to defendant, or that defendant must have honestly and reasonably believed that he could not retreat without adding to his peril, both accepted statements of the doctrine; but defendant had full advantage of these varying statements in special written charges given at his request, and the court is thoroughly well satisfied that he suffered no harm from the form of statement adopted by the court in its oral charge to the jury.
The rule is of universal acceptance that a person assailed is not bound to retreat from his own dwelling to avoid killing his assailant, even though a retreat could be safely made. Brinkley v. State, 89 Ala. 34, 8 So. 22, 18 Am. St. Rep. 87. And this doctrine is applied to the curtilage, or such space as is customarily occupied by the dwelling house and out buildings appurtenant thereto. Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am. St. Rep. 17; Naugher v. State, 105 Ala. 26, 17 So. 24; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; State v. Bennett, 128 Iowa, 713, 105 N.W. 324, 5 Ann. Cas. 997, where the cases are collated; State v. Brooks, 79 S.C. 144, 60 S.E. 718, 17 L.R.A. (N.S.) 483, 128 Am. St. Rep. 836, 15 Ann. Cas. 49. And cases may and do arise in which it can be affirmed as matter of law that a given house, structure, or place, is or is not within the curtilage. Cook v. State, 83 Ala. 62, 3 So. 849, 3 Am. St. Rep. 688. But upon the evidence in this case, which has had attentive consideration, the court is unable to say as matter of law that the place where defendant killed deceased was within the curtilage of the former's dwelling house. The trial court therefore committed no error when it refused certain charges (charges 3, 4, 11, and 16, requested by defendant), which, in connection with a statement that defendant was under no duty to retreat from such a place, sought to have the court declare as matter of law that the place where the killing occurred was within the curtilage of defendant's dwelling place.
We are not of opinion that Watkins v. State, 89 Ala. 82, 8 So. 134, holds to the contrary of what we have said in respect of the duty of a person assailed to retreat from the curtilage of his dwelling place, though it seems to have been so understood on one occasion at least. Thomas v. State, 13 Ala. App. 50, 69 So. 315. Considering what the court had to say of charge 8 in the Watkins Case in connection with other parts of the opinion and the facts on which the opinion was predicated, we apprehend that the charge was condemned for the reason that it pretermitted all inquiry as to the fault of defendant in bringing on, or participating in, the fatal difficulty. Nor do we so understand McGhee v. State, 178 Ala. 4, 59 So. 573. There is no report of the tendencies of the evidence in that case save as they may be inferred from the opinion. But the citation of Lee v. State, supra, 92 Ala. 15, 9 So. 407, 25 Am. St. Rep. 17, would seem to indicate that the court did not intend to depart from the wholesome doctrine of that case. Nor does the citation of Perry v. State, 94 Ala. 25, 10 So. 650, look otherwards. No question of curtilage was involved in that case, and we infer the same was considered to be true in McGhee v. State.
Charges 5, 18, and 20, requested by defendant, were properly refused. The defendant may have been at fault in bringing on the difficulty, though he may not have entertained the specific intent to bring it on. The law required that he should be mindful in this regard of the probable consequences of any wrongful word or act. He must have been free from all fault, or wrongdoing, which had the effect to provoke or bring on the difficulty. McQueen v. State, 103 Ala. 12, 15 So. 824; Crawford v. State, 112 Ala. 1, 21 So. 214; Griffin v. State, 165 Ala. 29, 50 So. 962.
Charge 23 was faulty in that it singled out a part of the evidence as to a fact which was in dispute and invaded the province of the jury by justifying the act of defendant on the evidence thus singled out.
We find no error.
Affirmed. All Justices concur; McCLELLAN, J., concurring in the conclusion.