Opinion
2 Div. 166.
April 17, 1917. Rehearing Denied May 15, 1917.
Appeal from Circuit Court, Dallas County; J.B. Evans, Judge.
Oscar Morrissette was convicted of an assault with intent to murder, and appeals. Affirmed.
The following charges were refused to defendant:
(1) If you believe from the evidence in this case that defendant bona fide withdrew from the difficulty, even though he provoked the difficulty, then he would have the right to set up such defense.
(2) If you are satisfied from the evidence in this case that defendant is free from fault in bringing on the difficulty, and that defendant bona fide retreated, and if you are further satisfied from the evidence that the assault made by Lovell, or the threatened assault made by him, if perpetrated, was likely to produce death or great bodily harm, you should acquit defendant.
The person assaulted was Lovell Givan.
Arthur M. Pitts and Craig Craig, all of Selma, for appellant. W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.
Charge 1 refused to the defendant ignores the burden resting upon him, essential to his right to plead self-defense, to show that he was in impending peril of life or limb at the time he fired on Givan with a deadly weapon. It also assumes that Givan, after defendant's withdrawal in good faith, pursued him, or renewed the difficulty and became the assailant. Brewer v. State, 160 Ala. 66, 49 So. 336.
Charge 2, as worded, has a tendency to mislead to the conclusion that the court entertained the view that Givan assaulted or threatened to assault defendant. It was subject to the further objection that it predicated the right of self-defense on a "threatened assault made by him," leaving out of consideration the presence of an overt act or attempt to carry into effect such "threatened assault," thereby producing impending peril, real or apparent, to the defendant's life or limb.
There was no exception to the oral charge of the court, and no objection to the verdict of the jury or the action of the court in sentencing the defendant, and hence nothing to review. McPherson v. State (Sup.) 198 Ala. 5, 73 So. 387; Woodson v. State, 170 Ala. 87, 54 So. 191.
Affirmed.