Tyus v. State , 10 Ala. App. 10 ( 1914 )

PELHAM, J.

The transcript contains no charges given at the request of the defendant, but set out in the bill of exceptions signed by the trial judge are several refused charges. Counsel for defendant in brief refers to but one of these charges, and insists that its refusal constitutes reversible error. The charge pointed out is numbered 16, and is in the following lan'guage: “It is not necessary, under the evidence in this case, that the defendant should have been actually in danger of death or great bodily harm at the time he killed Bates, or that retreat would have really increased his peril, in order for him to be justified in shooting Bates. He had the right to act on the appearance of things at the time taken in the light of all the evidence. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had the right to shoot Bates in his own defense, although as a matter of fact he was not in actual danger, and retreat would not have endangered his personal safety; and, if the jury believe that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and, if not shown, the jury should acquit the defendant.”

This charge, as is shown by the authorities cited in brief of appellant’s counsel, has been more than once approved by the Supreme Court, and by this court in following the holdings of that court. The charge is not abstract as referred to the evidence, and its refusal by the trial court is error, for which the judgment of that court must be reversed. — Bone v. State, 8 Ala. App. 59, 62 South. 455; Bluitt v. State, 161 Ala. 16, 49 South. 854; Bluett v. State, 151 Ala. 50, 44 South. 84; Black v. Slate, 5 Ala. App. 87, 59 South. 692; Langston v. State, 8 Ala. App. 129, 63 South. 38; McCutcheon v. State, 5 Ala. App. 96, 59 South. 714; Gibson v. State, 8 Ala. App. 56, 62 South. 895.

Other questions presented need not be passed upon, as they are such that may not arise on another trial.

- For the error in refusing the charge pointed out., an order of reversal must be entered.

Reversed and remanded.