State v. Schuessler , 3 Ala. 419 ( 1842 )

GOLDTHWAITE, J.

We can find nothing in this case to warrant us in coming to the conclusion that an error was committed when the charge demanded was refused.

The defect of the case is, that it does not disclose the facts in evidence before the jury, and we cannot infer the charge to be erroneous, when it may have been refused because there was no evidence to warrant it.

If it is admitted that the prisoner when assailed, might repel force by force, and that he was not required to retreat or fly before his adversary, this admission does not render him excusable, if he either causelessly or wantonly deprived his adversary of life. The evidence, even when most favorably construed for the prisoner, only shows that he was assaulted by the deceased, but does not show that his life was endangered, or great bodily harm menaced. Neither does it show that the slaying was not wantonly or causelessly done.

A state of facts may have been shown, to which the charge would have been appropriate; or the evidence may have been such as to render the inquiry entirely immaterial, and even absurd.

We cannot presume the fact, and adhering to our well established rule, that error must be affirmatively shown, we feel constrained to affirm the judgment.