Robinson v. State , 108 Ala. 14 ( 1895 )

McCLELLAN. J\

Neither the contents- nor the existence of the note received by the deceased from the defendant's sister and found on the person of the former after the homicide, nor of the note from deceased to the sister to which this was1 a response was known to the defendant at the time of the killing. His conduct, therefore, could not possibly ha,vo been influenced in any degree by these notes ; a.nd of course they could not be looked to to furnish a circumstance, either of guilt or innocence, nor of aggravation or palliation in respect of the offense for which he was tried and convicted. Had he known of this correspondence and its character, it a,nd his knowledge of it would have been competent evidence of premeditation and mal ace on his part, unless he came by it, for the first time to a knowledge of the illicit relations between the deceased and his sister, and immediately, in the heat of passion engendered by it, and before cooling time, as the law wisely defines that period, he had shot and killed deceased. As he did not know of it at all, the court properly excluded it from the jury. — State ex rel. v. Tally, 102 Ala. 25, 33-35.

The several charges given at the request of the State and excepted to by the defendant were, with probably one exception, copies of charges expressly approved by this court or copies of the language of this court in stating what charges on the subjects to which these are addressed, and in cases like this, should contain. — Roberts v. State, 68 Ala. 156; Holley v. State, 75 Ala. 15 ; Cleveland v. State, 86 Ala. 1. And we do not understand it to be seriously insisted that any of these charges — numbered 1, 7 and 8 — were improper.

The 6th charge given for the State is the exception to what is said above. It is in the following language : “Whenthe defendant sets up self-defense in justification or.'excuse of a killing, the burden of proof is upon him to. reasonably show do the jury by the evidence that there was a present impending danger, real or apparent, to life or limb, or of grievous bodily harm from which there was no other probable means of escape, unless the evidence..which proves the homicide proves also its excuse or justification.” The argument against- this instruction is.predicted .upon the-use of .the word probable instead of the word reasonable in characterizing defendant's .means or opportunity to escape-.- We think tfyere is ño merit in this objection. It seems clear indeed that the word used is more favorable to the defendant than that which counsel insist should have been employed. Taking these words in their usual sense as declared by this court many times, and applying these definitions to them in the connection under consideration . a reasonable mode or means of escape is such opportunity' as there is reason to believe may be successfully availed of, though the considerations which led to such belief may not preponderate over these which point to a failure of such an effort; while, upon the other hand, a probable mode or means of escape is such opportunity as involves more chances in favor of than against success in the attempt to take advantage of it, so that before it would be a defendant's duty to retreat the considerations pointing to success of an effort to do so must, according to this instruction, preponderate over those which presage failure. Assuming, therefore, as counsel do, and as is the law, that if there be a reasonable means of ■ retreat open to the slayer, but he stands his ground and bills, he cannot invoke the doctrine of self-defense, this charge is only faulty in that it is too favorable to the appellant; and such infirmities cannot be availed of by him to reverse the judgment of conviction. — Shell v. State, 88 Ala. 14 ; Carter v. State, 82 Ala. 13; Smith v. State, 86 Ala. 28.

The judgment of the circuit court must be affirmed.