Holmes v. State , 23 Ala. 17 ( 1853 )

CHILTON, C. J.'

-There is no principle better settled by numerous decisions of this court, than that the court cannot properly withdraw from the consideration of the jury any evidence which tends to establish the plaintiff’s case, or the defendant’s defence; and any charge which has this effect upon a fair construction of it, is erroneous. The rule is further settled, that when the record shows that an error has been committed against a party, injury will be presumed, unless the. record clearly shows that no injury resulted to him; and, as a further exposition of this latter rule, we may venture to assert, that however correctly the judge in his general charges to the jury may lay down the law, yet, if in a subsequent specific charge, he places the case upon the existence of certain facts on which alone it may not be properly made to turn, and the effect of which, if literally followed by the jury, is to withdraw from thorn the consideration of other facts which either tend to disprove or materially to qualify those on which the charge is predicated, we must intend injury from this error, since it is impossible for this court to determine what effect such charge had upon the finding of the jury. They might have construed the charge given in connection with the other charges, and thus have found all the facts necessary to make out the case; on the other hand, they may have confined their investigation to the facts mentioned in the last charge, and have predicated their verdict upon them alone, in which event they have not passed upon the whole case, and hence injury results to the party against whom they find.

It is thus manifest that the record leaves the matter in doubt as to whether or not injury has resulted; and being left doubtful, it falls within the principle which reverses for the error.

We come, then, to inquire whether the last charge given by the court was erroneous.

This charge substantially informs the jury, that, “if they find that when Anderson was advancing towards the defendant, with his knife open in his hand, the defendant said to him, ‘ If you intend to use your knife, I will get my gun and shoot you,’ and Anderson replied, cIf you are afraid of my knife, I will shut it up,’ and did shut up his knife and throw it down on the ground, and the defendant then sprang to his gun, and seized it and fired, the defendant is guilty.”

The defence mainly relied upon was, that the accused, from the circumstances in proof, had, at the time he fired his gun, reasonable apprehension of great personal violence, involving imminent peril to life or limb. 1’f he had, it is clear from all the cases, he had the right to protect himself even at the expense of the life of his assailant, if such protection could not be otherwise secured.—Oliver v. The State, 17 Ala. 598; Pritchett v. The State, 22 ib. 39, and cases cited.

It is not our province to say whether, in the case before us, the evidence sustains such defence. It is sufficient for the purposes of this investigation, that there was some evidence tending to establish it.

It was a question peculiarly for the jury to decide, whether the defence was made out; and as the facts set forth in the charge, and upon which, as matter of law, the court deduced the defendant’s guilt, were not wholly inconsistent with the opposite hypothesis which other facts tended, however feebly, to establish, it follows that the charge, which must be construed with reference to the facts, was erroneous. We cannot judicially know that the prisoner heard what Anderson said, or saw what he did. There was one witness, who was present, and who testifies that she did not hear him say any thing about his knife, nor did she see him throw it down. Whether the prisoner saw or heard him, or whether, seeing and hearing him, he notwithstanding had reasonable apprehension that he was in imminent peril of great bodily harm, are questions which the jury should determine from all the facts and circumstances in proof. But the jury might well have supposed that, if they found the truth of the facts hypothetically stated in the last charge, these inquiries were superseded.

In Pritchett v. Monroe, 22 Ala. 501, we held that a charge based upon a hypothetical state of facts, which excludes from the consideration of the jury other evidence which is before them, is erroneous, as tending to mislead the jury by creating the impression that they would be authorized to reject 'the other evidence. The same principle was re-asserted in Edgar v. McArn, at this term. Such, we think, is the effect of this charge.

Let the judgment be reversed, and the cause remanded.