Terry v. State , 17 Ala. App. 527 ( 1920 )

The appellant was convicted of manslaughter in the first degree and his punishment fixed at eight years in the penitentiary. At the time of the killing, the defendant and the deceased were living in an abandoned house, where they were engaged in the manufacture and sale of prohibited liquors. The defendant claimed justification by self-defense. There was evidence tending to show that the defendant undertook to conceal the crime by placing the body in a hole in the ground, inside the house in which they were living, and covering it with dirt. The defendant's testimony controverted this, as well as tended to refute the implication that what the defendant did with or about the body was done under consciousness of guilt.

The bill of exceptions does not contain a recital that it contains all, or substantially all, of the evidence offered in the case. Any state of the evidence will therefore be presumed to uphold the rulings of the trial court in its rulings as to evidence or charges requested. Lamar v. King, 168 Ala. 285,53 So. 279; Southern Ry. Co. v. Wyley, 200 Ala. 14, 75 So. 326.

The only insistence of error urged by able counsel representing the appellant is based upon the refusal of a number of written charges and the giving of a written instruction at the request of the state. Since no new question of law is presented by the refused charges, no good purpose would be subserved by a detailed treatment of them. Madison v. State, 196 Ala. 590, 71 So. 706. Eighteen charges were refused to the defendant; thirty-five given at his request.

Refused charge 8 proceeds upon the theory that, assuming the defendant's freedom from fault in bringing on the difficulty, the defendant was under no duty to retreat if at the time he fired the fatal shot he believed the deceased to be about to make a murderous assault upon him. Given charge 47 differs from this charge only in the respect that in the latter the duty to retreat was negatived in the event the assault or attack was made. It is sufficient to say, without deciding the propriety of the use of "about to make," etc., that this feature is fully covered by other instructions given by the court to the jury, among them that numbered 4.

Charges numbered 10, 15, and 18, undertaking to define the constituents of fault in bringing on the difficulty, are covered by given charges 4, 5, 6, and 45.

Refused charges 17 and 28 are substantially covered by given charges 44, 45, and 47. But these two refused charges undertake to instruct the jury upon two different phases of the duty to retreat. The latter phase, dealing with the character of the attack as to real or apparent danger, is covered by the given charges mentioned. The other phase is: "If the defendant's acts or words towards the deceased did not actually bring about the difficulty, he was under no duty to retreat." This phase is covered by given charge 4.

Refused charge 16, dealing with the burden of proof resting on the state to establish defendant's willingness to enter the fight, is covered by charges 44 and 47.

The charge given at the request of the state is a correct statement of the law. A party cannot contribute to bringing on a difficulty and voluntarily place himself in danger, and then kill his adversary and claim it was in self-defense. Walker v. State, 89 Ala. 79, 8 So. 144.

After a full examination of the entire record, we are not convinced that the defendant was denied any right due to him under the law.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.