Love v. State , 17 Ala. App. 149 ( 1919 )

The defendant was indicted for an assault with intent to murder. He was tried under this indictment and convicted of assault with a weapon and appeals. The defenses interposed were not guilty, and not guilty by reason of insanity.

Counsel for defendant have filed an excellent brief in this case, and we will follow the matters complained of as error as they are briefed.

The rule of law sought to be stated in charge 2, refused to the defendant, is clearly stated in charge 1, given at his instance, and the refusal of this charge was not error. And, indeed, the charge is not a clear statement of the rule of law, and its refusal was justified for this reason.

The principle asserted in charge 12, refused to the defendant, is clearly stated in charges 10 and 11, given at his instance; hence the refusal of charge 12 was not error.

If the oral charge of the court dealing with the duty of retreat is subject to any criticism, it is, when considered as a whole, more favorable to the defendant than the law justifies. After the exception was reserved, the court stated to the jury:

"That if the defendant was in actual peril of suffering the loss of life or serious bodily harm, and could not retreat in safety to himself, that then he could set up the law of self-defense. Or, if he was in apparent peril, although it may not have been actual, if he was apparently in peril of suffering loss of life or serious bodily harm, and he could not retreat with safety to himself, then, gentlemen, if you find from the evidence that he did not provoke or bring on the difficulty and did not enter into the fight willingly, the defendant could set up self-defense."

The rule is that if there is open to the defendant a reasonably safe mode of retreat, and to retreat would not increase his danger, it is his duty to retreat (Oldacre v. State, 196 Ala. 690, 72 So. 303); and unless the mode of escape was known or apparent to him, and the circumstances were such that he could not avail himself of it without increasing his peril, it cannot be said that he had a reasonable mode of escape (Carroll v. State, 12 Ala. App. 69, 68 So. 530). This principle is clearly stated in charges 7 and 19, given at the defendant's instance.

It is well settled that if the defendant was at fault in bringing on the difficulty, or if he fought willingly (in assaults with a weapon, or assaults and batteries), he cannot invoke the doctrine of self-defense, until or unless he has made a bona fide retirement from or an abandonment of the difficulty, and the difficulty has been renewed by the other party. This involves, of necessity, a retreating or leaving of the difficulty by the defendant. The court was charging upon self-defense, and his statement of the duty of retreat in that connection was a correct statement of the law.

Where a defendant does not provoke the difficulty, or is not at fault in bringing it on, and does not fight willingly, but uses no more force than is necessary to repel, the doctrine of retreat has no application, for the defendant is there continually in a defensive attitude, and, in legal contemplation, on the retreat so far as the difficulty in which he is engaged is concerned. Blankenship v. State, 11 Ala. App. 125,65 So. 860, and cases there cited.

Charge 6 was properly refused. Pippin v. State, 197 Ala. 613,73 So. 340.

Charge 13 is unintelligible, elliptical, incomplete, and bad.

Charge 16 is manifestly bad and was properly refused. Moreover, the principles of law undertaken to be embodied in this charge were fairly and substantially covered by the oral charge of the court and by the given charges.

The only exception reserved to the ruling of the court on the evidence is wherein the court sustained an objection to the offering in evidence of the discharge of the defendant as a soldier from Camp Pike, for the purpose of showing the defendant's mental condition. The discharge itself is not set out in the record, and this court is therefore unable to say whether it contained anything that would tend to show that the defendant was mentally unsound. Moreover, there was no proof made that it was the original paper, and it does not appear from the record that it was self-proving; it follows that the ruling of the court is manifestly free from error.

We have been unable to find any error in the entire record of a reversible nature, or any ruling of the court which injuriously affected the substantial rights of the defendant.

The judgment of the circuit court is affirmed.

Affirmed.