Keef v. State , 10 Ala. App. 13 ( 1915 )

THOMAS, J.

No exceptions were reserved, and consequently no other questions are presented for review, except as to the action of the court in refusing certain charges requested by defendant in writing.

The first of these charges, numbered 1, is bad, in that it ignores all question of retreat. — Wharton on Homicide, 471 (3d Ed.) ; Gordon v. State, 140 Ala. 29, 36 South. 1009; Mann v. State, 134 Ala. 1, 32 South. 704; Scott v. State, 133 Ala. 112, 32 South. 623; Jimmerson v. State, 133 Ala. 18, 32 South. 141. Moreover, it pretermits a consideration by the jury of the question of freedom from fault in bringing on the difficulty. — Wilson v. State, 140 Ala. 43, 37 South. 93; Jarvis v. State, 138 Ala. 17, 34 South. 1025; Harkness v. State, 129 Ala. 71, 80 South. 73. For the latter reason, if not others, charge 3 also is bad.

Charge 2 is confusing and misleading, and does not correctly state the law. The law is that, if the defendant could have retreated without increasing his peril, then it was his duty to have done so rather than to have hilled deceased, although he could not have so retreated with absolute safety to his person, as the charge seems to assert. — Bell v. State, 115 Ala. 39, 22 South. 526; 1 May. Dig. p. 804. From the charge the jury might well have been misled into believing that, if by retreating the defendant would have received some slight injury to his person, then he was relieved of the necessity of retreating. The court did not err in refusing the charge.

Charge 4 asserts that “a man may fight willingly, if he is free from fault in bringing on the difficulty, and there is no other reasonable mode of escape without increasing his danger”; but the charge ignores all consideration by the jury of tbe degree of force that the person, so situated as stated in the charge, is allowed to use in defending himself against the assault so made upon him. If the assault was not felonious, was not such as to imperil his life or his person with serious harm, or reasonably appeared so, he would not be justified in killing his assailant, although he was free from fault in bringing on the difficulty, etc. The charge to be applicable here, would have removed the consideration of these questions from the jury, and was otherwise faulty, as pointed out in the consideration of a similar charge in Pugh v. State, 132 Ala. 1, 31 South. 727; Harbour v. State, 110 Ala. 103, 37 South. 330.

Refused charges 5 and 6 were fully covered by given charge 17.

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

Affirmed.