Hutcheson v. State , 170 Ala. 29 ( 1910 )

EVANS, J.

In the case of Storey v. State, 71 Ala., at the bottom of page 336 Justice Somerville, writing the opinion of the court, it is said: “Where, however, the assault is manifestly felonious in its purpose and forcible in its nature, as in murder, rape, robbery, burglary, and the like as distinguished from secret felonies, like mere larceny from the person, or the picking of one’s pocket, the party attacked is under no obligation to retreat. But he may, if necessary, stand bis ground and kill Ms adversary.” This statement, however, is explained and qualified at the bottom of page 387, as follows: “The law requires that the circumstances surrounding the prisoner should have created in his mind a reasonable belief of his own imminent peril, and of an urgent necessity to take the life of his assailant, as the only apparent alternative of saving his own life, or else the infliction of great bodily harm. Such peril must be to all appearances present and immediate, and the belief in the necessity of killing must be well founded and honestly entertained, and of these facts the jury must be the judge.” With the last qualification of the first statement above mentioned, it is apparent that charge No. 1 asked by the defendant, and refused by the court, was erroneous and properly refused. The charge does not hypothesize that defendant at the time of the killing honestly entertained the belief that she -was in imminent peril, and that there was an urgent necessity to take the life of her assailant in order to save her own life or of preventing the infliction on her, by her assailant, of great bodily harm. Said charge was properly refused.—Springfield v. State, 96 Ala. 87, 11 South. 250, 38 Am. St. Rep. 85.

Charge 10, requested by the defendant and refused by the court, was properly refused, as giving too great prominence to the evidence of good character, and failed to bring to the consideration of the jury all of the other evidence in the case.—Scott v. State, 105 Ala. 59, 16 South. 925, 53 Am. St. Rep. 100; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85; Goldsmith v. State, 105 Ala. 8, 16 South. 933; Grant v. State, 97 Ala. 35, 11 South. 915.

Charge 18 asked by defendant was abstract, and states no proposition of law, and was properly refused.

Objection to argument of solicitor could not be raised by written charge. The argument should have been objected to at the time it was made. Charge 14 was therefore properly refused.

Charge 25, requested by the defendant, should have been given. The evidence was without dispute that the killing took place in the dwelling house of both defendant and deceased. Defendant was the wife of the deceased, and they were living together in this house. There must be somewhere a person may stop and defend himself or herself, when they have the right otherwise to do so. The fact that two may live in the same house, have the same dwelling, or place of business does not take away from either in favor of the other the right to stop there and defend himself.—Jones v. State, 76 Ala. 8.

For the error pointed out, the case is reversed and remanded.

Reversed and remanded.

Dowdell, C. J., and Anders'on and Save®, JJ., concur.