Leonard v. State , 66 Ala. 461 ( 1880 )

SOMERVILLE, J.

The action of the court in reference to the juror Boyd was most clearly free from any conceivable prejudice to the appellant. The challenge of him, which was first permitted at the instance of the State, was afterwards1 disallowed, and its retraction sustained, expressly on the objection of the prisoner. An exception can not be based on a ruling of this nature, which is superinduced by the party so excepting. He might, with as much reason, request the court to give a charge, and afterwards seek in the appellate court to base an assignment of error upon the fact that the Circuit Court conformed to his request. Such a practice would be little less than a grave trifling with the dignity of the law.

The charges asked by the appellant are all based upon a hypothetical state of facts, the truth of which there is no evidence whatever tending to establish. Though some of these charges assert legal propositions which are abstractly correct, they are not applicable to the facts of the case, as disclosed by the record, and were calculated to mislead the jury. Such charges should never be given, and were in this case properly refásed.—State v. Richardson, 54 Ala. 158; State v. McAlpine, 47 Ala. 78; State v. Taylor, 48 Ala. 157.

The doctrine of self-defense, which is sought to be elucidated by some of these charges, does not arise under the evidence in this case. Such a plea can never be invoked, or made available by a defendant, unless he be reasonably free from fault in bringing on the difficulty. If he was himself the aggressor, and without legal excuse induced the necessity •for the killing, such necessity can not be urged in justification of the act. In other words, as often held and frequently reiterated by decisions of this court, no one can avail himseif of a necessity which he has knowingly and willfully brought on himself.—Cross v. State, 63 Ala. 41; Lewis v. State, 51 Ala. 1; Eiland v. State, 52 Ala. 322; Horr. & Thomp. Cases Self-Def. 24; 1 Bish. Cr. L. § 844. There was no evidence tending, in the remotest degree, to prove that deceased made any effort to use the knife discovered on his person; and if the jury could reasonably infer the fact of such attempt, from its being found open in his right hand, the evidence shows plainly, without conflict, that the appellant was the unprovoked aggressor in the fight, having himself commenced it without any legal excuse, or even plausible pretext.—McNeezer v. State, 63 Ala. 169.

We discover no error in the record, and the judgment of the Circuit Court is affirmed.