Poe v. State , 87 Ala. 65 ( 1888 )

SOMERVILLE, J.

The statement of the witness Olines, that the defendant “was afraid” to work in the field alone, or to go out about his premises after dark, on account of threats made against him by the deceased, for whose homicide he stands indicted, was, at most, but the opinion of the witness, based either on the conduct or declarations of the defendant himself, or else unsupported by fact at all; and it was properly excluded by the court. Such evidence would open the way for easy manufacture of testimony by defendants. The fears of a man, moreover, may be no proper evidence of the danger even apparently confronting him.

“The right of self-defense,” as the rule is sometimes stated, “can not be carried to the last resort of taking human life, until the defendant has availed himself of all proper means in his power to decline combat by retreat, provided there is open to him a safe mode of escape — that is, when he can safely and conveniently retreat, without putting himself at a disadvantage by increasing his own peril in the combat.”—Carter v. State, 82 Ala. 13, and cases there cited; Brown v. State, 74 Ala. 478; Rogers v. State, 62 Ala. 170.

The charge given by the court, at the request of the solicitor, asserted that “ if the deceased was the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape.” This instruction states the rule in the ordinary language of our decisions, and of the books. The main objection taken to it is, that it requires the party assailed to act only on the actual, and not the apparent necessity. Such is not the construction generally imputed to charges in this form, which purport only to assert a rule of law in general terms. The defendant, in estimating the peril which surrounds him — in its bearing both on the necessity of taking life, as well as of retreat — may certainly act on reasonable appearances, where this phase of fact enters into the evidence. This qualifying principle should be invoked by an explanatory charge. An instruction given by the court, which ignores it, may be misleading, as too narrow and limited, but it is not erroneous, the giving of a misleading charge not always being ground of reversible error. The case of Tesney v. State, 77 Ala. 33, does not go further than this, the seventh head-note not being justified by the opinion of the court.

The second and sixth charges requested by the defendant were erroneous, in excluding from the consideration of the jury all inquiry as to any duty of retreat'. The mere fact that the alleged attack by the deceased on the defendant was with a pistol, the defendant himself being armed with a shot-gun, did not warrant the withdrawal of this inquiry from the jury, and its decision as matter of law by the court.- — Storey's ease, 71 Ala. 329, 337.

The seventh charge is predicated upon the idea, that the making of threats and using of abusive language, without regard to the character of such threats, if accompanied by an overt act to carry them into effect, would justify the party assailed in killing his adversary, without resorting to retreat. This is not -the law. No threats or overt acts, which do not, actually or apparently, justify a reasonable apprehension of danger to life, or great bodily harm, will avail as an excuse of taking human life. There was no error in refusing this charge. — Eiland v. State, 52 Ala. 322; Storey's case, supra; State v. Benham, 92 Amer. Dec. 417.

The eighth and, ninth charges are misleading, in assuming as true certain facts, without referring the sufficiency of the evidence bearing on them to the jury. The former assumes that in this case a retreat by the defendant, on the uncontroverted facts, would have left the danger confronting him still impending, and perhaps increased. The latter charge assumes as true the testimony o± the defendant rendered on the trial, to the effect that the deceased had “put his hand in Ms pocket as if to draw a pistol,” which, was controverted; to say nothing of its failure to refer to the jury the credibility of other testimony tending to support other facts hypothesized in the charge.

This disposes of all the exceptions taken to the rulings of the court. We discover no error in the record, and the judgment must be affirmed.