Pugh v. State , 132 Ala. 1 ( 1902 )

McCLELLAN, C. J.

Charge 1 refused to the defendant assumes that defendant was in imminent peril of life or great- bodily harm when he shot Connor. The burden was on defendant to show such peril, and the evidence as to its existence vel non was conflicting. This charge is further bad for the reason that, assuming the existence of great and impending peril, it authorized defendant to stand his ground unless he could have “retreated with reasonable prospects of safety.” The law is that he should have retreated unless t-o have attempted retreat would have increased his peril. It may well' be that a retreat which does not offer reasonable prospect of safety would yet not increase the peril of the party assailed.

Charge 2 would have authorized the jurjr to acquit the defendant on the ground of self-defense even though they should have found that defendant might have retreated without increasing his peril.

Charge 3 misplaces the burden of proof as to retreat. It was an element of the defense of self-defense that the defendant could not have retreated without increasing his peril, and it was upon him to show it. Under this 'Charge it would not have been necessary for the defendant to show that he could not have retreated without increasing liis peril, but it would have been necessary for the State to prove that he could have retreated without increasing his danger. Charge 4 has the same infirmity in reference to the burden of proof on the issue of duty to retreat vel non, and it also misplaces the burden of proof as to the presence of great- and imminent peril to defendant. That, too, was a part of his defense, and for him to prove—not for the State to disprove.

It may or may not be that for the defendant to have exposed himself to the loss of his life or to great bodily harm by attempting to retreat, when, as hypothesized in charge 5, the deceased was attempting to shoot at Mm with a pistol, would have subjected him to greater peril than was involved in standing his ground and fighting. If it would not, he should have retreated. Charge 5 was, therefore, properly refused.

Charge 6 also misplaces the burden of proof in respect of the practicability of retreat; and it is bad for the further reason that it assumes the existence at the time of the homicide of great and impending peril to the defendant. Charge 7 has the saíne infirmities.

In view of the evidence adduced going to show that the killing was the culmination of a continuing difficulty which started earlier in the day or of a series of difficulties between the men on that clay, the language of charge 8 as to defendant being free from fault “in commencing the difficulty and the acts of the deceased at the time of the killing,” etc., would seem to involve a tendency to mislead and confuse the jury. But this charge is affirmatively had in that it rests defendant’s right to kill on facts which were sufficient to impress the mind of a-reasonable man that his life was in danger, etc.,’though defendant’s mind may not have been so impressed by these facts and though there may not in reality have been any danger at all. The danger which will justify taking life must be real, or it must be reasonably believed by the defendant to be real. If it is not real, and the defendant did not believe it to be real, it is of no consequence that the situation was such as to impress the mind of a reasonable person that it was real.

On a trial for murder it is not necessary for the State in making out its case to prove that the defendant was at fault in bringing on the difficulty at all until the defendant has shown that he was in imminent peril, etc., and could not retreat without increasing his peril. Charge 9 refused to the defendant would have required an acquittal upon failure of the State to prove that the defendant was at fault in blunging on the difficulty, although the jury may 'have found that he was in no danger, real or apparent, when he fired the fatal shot, or that, beng in danger, he could have retreated without increasing his peril.

The judgment of the circuit court must be affirmed.

Affirmed.