Blackburn v. State , 86 Ala. 595 ( 1888 )

SOMERVILLE, J.

The defendant was indicted and tried for killing one Mat. Gray, by shooting him with a pistol, and was convicted of manslaughter in the first degree. The contention on the trial in the court below was, that the killing was done in self-defense, which the evidence tended to prove. The court charged the jury, among other things, that it must not appear from the evidence that the slayer was at fault in bringing about the alleged necessity for the killing, or in provoking the difficulty. The exception taken to this part of the charge "was, that it was abstract, and tended to mislead the jury. It was unquestionably a correct proposition of law, and its alleged misleading tendencies could have been corrected by an explanatory charge. We have often held such charges not to be erroneous, in the sense of constituting a reversible error. We can not see, moreover, how this charge could have misled the jury, under the circumstances of the case, as it was for the jury to say whether the defendant was not in fault in having declined to retreat further. This fact may have brought on the difficulty, and thus produced the necessity of taking life.—Wallin v. State, 83 Ala. 5.

To invoke the doctrine of self-defense in cases of homicide, it must not only appear that the defendant, at the time of the killing, entertained reasonable apprehension of great personal violence, involving imminent peril to life or limb, but that he had availed himself of all proper means in his power to decline combat by retreat, provided he could do so in safety, or without putting himself at a disadvantage. The first charge requested by defendant was erroneous, in two particulars: (1) It assumed by strong implication, as matter of fact, that the defendant was in good faith retreating, whereas there was room for a contrary inference by the jury, based upon the sudden manner in which he turned upon and shot the deceased, by anticipating any overt act on the part of the latter. (2) It asserts the right to kill when one is in “imminent danger,” ignoring that this danger must involve peril to life or limb. The second charge was also erroneous in being obnoxious to the first objection above suggested, to which the first charge was liable.

The third charge asserts, in effect, that every hypothesis of the defendant’s innocence, however unreasonable, or speculative, would authorize his acquittal, which is obviously erroneous.

These charges were all properly refused, and the judgment of conviction must be affirmed.