Squire v. State , 87 Ala. 114 ( 1888 )

CLOPTON, J.

There was no error in tbe refusal to charge tbe jury, at tbe request of defendant, if they believed from tbe evidence that tbe assault was unprovoked by him, and be appeared to be so much menaced at tbe time as to create a reasonable apprehension of danger to bis life, or of grievous bodily barm, be is entitled to an acquittal, provided be could not bave retreated without danger to bis life or person. If it be conceded that tbe hypothesis of the charge sufficiently supposes tbe facts essential to tbe plea of self-defense, it was properly refused on two grounds: Eirst, it assumes as a fact, that an assault was made upon defendant by deceased; which, being disputed, and dependent on conflicting oral testimony, was a question exclusively for tbe jury. A charge which assumes as proved a controverted fact, is an invasion of tbe province of tbe jury, and properly refused. Second, tbe hypothesis is not sustained by the proof. Tbe bill of exceptions purports to set out tbe entire evidence; and it fails to disclose any tending to show, or from which an inference can be drawn, that defendant appeared to be so menaced as to create in tbe mind of a reasonable man an honest belief of present, impending peril, or that be could not bave retreated without danger. Defendant himself is tbe only witness, who testifies to an assault by deceased. Assuming tbe truth of bis testimony, and using bis own language, when be was struck at with tbe axe, be “backed off some fifteen steps and shot him.” Evidently be was at that time beyond tbe reach of tbe axe. There is no pretense that deceased was pursuing, or attempting to pursue him; and no reasons are shown, why be could not bave retreated with safety, so as to bave avoided any necessity to take life, as easily as be escaped a blow with the axe by backing tbe distance of fifteen steps.—Williams v. State, 81 Ala. 1.

Affirmed.