Opinion
3 Div. 709.
June 21, 1932.
Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.
Robert Lewis was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
The following charge was refused to defendant: "10. I charge you, gentlemen of the jury, that if you believe from the evidence that the deceased made a sudden unprovoked murderous attack upon defendant, deceased at the time being armed with a deadly weapon and in the act of effecting upon the defendant his murderous purpose, then, I charge you, the defendant was under no duty to retreat, but had the right to stand his ground and kill his assailant."
Thos. B. Hill, Jr., and Wm. Inge Hill, both of Montgomery, for appellant.
Where the defendant in prosecution for murder pleads self-defense, a prima facie case is made out by showing present or apparent imminent danger to life or limb, and no reasonable mode of escape, whereupon the state must carry the burden of disproving one of these, or prove by required degree of proof that defendant was not free from fault in bringing on the difficulty; and for want of this defendant is entitled to affirmative charge. Rice v. State, 20 Ala. App. 102, 101 So. 82; Walker v. State, 220 Ala. 544, 126 So. 848; McBride v. State, 21 Ala. App. 508, 109 So. 566; Roberson v. State, 183 Ala. 43, 62 So. 837; Simmons v. State, 22 Ala. App. 126, 113 So. 466; Bishop v. State, 23 Ala. App. 109, 121 So. 455; Davis v. State, 214 Ala. 273, 107 So. 737. Charge 10 is a correct statement of law, and its refusal is error. Donald v. State, 24 Ala. App. 251, 133 So. 749; Walker v. State, supra.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
Though defendant's testimony as to how a difficulty occurred was uncontradicted, still it was for the jury to say whether, under the circumstances, the killing was justifiable. Olive v. State, 8 Ala. App. 178, 63 So. 36; King v. State, 89 Ala. 146, 7 So. 750. The evidence shows that defendant entered into a difficulty between deceased and another party, and that he did not have to do so to prevent harm to deceased's adversary. Charge 10 is not applicable to this case. Jones v. State, 209 Ala. 655, 96 So. 867. At any rate, the effect of said charge was covered by the oral charge and defendant's given charges.
Appellant was convicted of the offense of manslaughter in the first degree.
In the first instance, at least, it was for the jury to say whether circumstances made it necessary for defendant (appellant) to take the life of deceased to save his own, or to save his person from serious bodily harm, or whether a reasonable belief as to such necessity existed, although the evidence of the state did not contradict the testimony of the defendant, and although defendant was free from fault in bringing on the difficulty. Olive v. State, 8 Ala. App. 178, 63 So. 36.
The contents of the last preceding paragraph may be denominated a general principle of law, but which serves to demonstrate that the trial court did not err in refusing to give to the jury at appellant's request the general affirmative charge to find in his favor.
As was pointed out, of a similar charge, by Judge Samford, for this court, in the case of Holland v. State, 24 Ala. App. 199, 132 So. 601, 604, appellant's written requested charge 12 was properly refused as for its "ignoring the doctrine of 'freedom from fault and retreat.' "
Appellant's written requested charge 10 should have been given to the jury. It is substantially the same as appellant's written requested charge 4 in the case of Walker v. State, 220 Ala. 544, 126 So. 848. And in that Walker Case, the Supreme Court held it reversible error to refuse the said charge 4, under circumstances not variant in legal bearings, etc., from those present in the instant case.
We followed, naturally (Code 1923, § 7318), the ruling mentioned, of the Supreme Court in the said Walker Case, in our case of Donald v. State, 24 Ala. App. 251, 133 So. 749, a case where the circumstances calling for the giving of an exactly (substantially) similar charge are, we think, indistinguishable, in legal effect, etc., from those in the instant case.
The other rulings apparent will not, we believe, occur upon another trial, and we will not consider them.
But for the error in refusing appellant's written requested charge 10, the judgment is reversed, and the cause remanded.
Reversed and remanded.