Roberts v. State , 171 Ala. 12 ( 1911 )

MAYFIELD, J.

The state’s counsel ashed defendant on cross-examination, if he did not, on a given occasion, met one Jackson and say to him that he (the defendant) and the deceased were going to see the same girl, and that, if the deceased did not stop it, one or the other would be killed. There was- no error in allowing this question, nor the answer thereto, nor in calling the witness Jackson to prove the predicate thus laid. The evidence Avas competent to prove a threat by the defendant against the deceased, to show a motive, and to impeach the defendant after he had denied making the statement. Burton v. State. 115 Ala. 1, 11, 22 South. 585.

It was not error -for the court to instruct the jury that, in order for the defendant to invoke self-defense in a prosecution for murder, lie must be absolutely free from fault in bringing on the difficulty. Reasonably so is not sufficient. It admits of no qualification. Crawford v. State, 112 Ala. 1, 21 South. 214; Baldwin v. State, 111 Ala. 11, 20 South, 528.

The bill of exceptions recites as follows: “The court in his oral charge charged the jury that it was'the duty of the defendant'to have retreated if he could have done so safely and without increasing his peril; that if a necessity for the taking of life then existed, and he was free from fanlt in bringing on the difficulty, and he had no safe mode of escape without increasing peril to life or great bodily harm, he would have the right to stand and defend himself, even though it necessitated the taking of human life. The defendant duly excepted to this part of the court’s oral charge.” This stated the law as to retreat as favorably as the defendant had a right to request. If objectionable, it was because too favorable to the accused.

Charge A, requested by the defendant, was incomplete, and not made sufficiently applicable to the evidence, and wasl calculated, ¡therefore, to mislead or confuse the jury.

Charge. B is shown to have been interlined, and to have contained erasures, and in the form in which it was offered to the court was calculated to confuse the jury. Moreover, it requested an acquittal on the theory of self-defense, and the facts hypothesized as constituting the defense omitted all reference to the duty of defendant to retreat) or to show that he could not have retreated without increasing his danger or peril. For this reason, the charge was properly refused.

We find no error, and the judgment must be affirmed.

Affirmed.

Anderson, Sayre, and Somerville, JJ., concur.