Turner v. State , 11 Ala. App. 1 ( 1914 )

WALKER, P. J.

The affray, a result of which was the killing of the deceased by the appellant, started between the latter and the father of the former during a conversation between them in regard to alleged improper conduct of the deceased towards a young daughter of the appellant. Inquiries as to the father of the deceased seeing or communicating with others prior to the affray about the misconduct charged against his son were not relevant to the issue in this case. The question of the appellant’s guilt or innocence of the crime charged against him could not have been affected by anything the deceased’s father may have intended to do in seeing others about a trouble his son had got into. It follows that the court was not in error in sustaining the objection to a question asked on the cross-examination of the father of the deceased which sought to elicit proof that his purpose in making a visit to others prior to the fatal affray was “to see them something about the matter, about your son and Mr. Turner’s daughter.” The appellant was not entitled to have evidence of that occurrence, or what had been said or done about it, brought into the case.

The fact that the defendant was praying when a witness saw him several hours after the difficulty, and at a place some distance from the scene of it, was a wholly irrelevant one, and evidence of it was properly excluded. *

The facts that some time prior to the fatal difficulty the defendant had talked to his daughter, and that she was 14 years old, did not constitute elements of a defense to the charge against him, and the court did not err in sustaining.objections to evidence of those facts.

The proposition that one who enters willingly into a fight cannot set up self-defense against a charge that he harmed another in the course of it is but an application of the principle that a necessity which is occasioned or brought about by one’s own voluntary conduct cannot be availed of by him as an excuse for or justification of a consequence of it. The court did not err in giving charge 1, requested by the prosecution. — Lewis v. State, 88 Ala. 11, 6 South. 755. It is admitted in the argument in behalf of the appellant that there is nothing to complain of in the other written charges given at the instance of the prosecution.

One cannot properly be said to enter willingly into a fight when his participation in it is under the compulsion of a necessity of defending himself, not occasioned or brought about by any fault on his part. It was not error to refuse charge A, requested by the defendant, as it was confusing and misleading, if not self-contradictory.

The judgment appealed from cannot be reversed because of the court’s refusal to give charges B, O, E, F, I, J, N, P, and Q, or any one of them, as the propositions stated in those charges were covered by written charges given at the defendant’s request.

Charge G-, requested by the defendant, was faulty in failing to hypothesize his freedom from fault in either provoking or bringing on the difficulty or the existence, at the time the fatal shot was fired, of a real or apparent peril to himself of death or great bodily harm.— Brewer v. State, 160 Ala. 66, 49 South. 336.

The court was not required to give charges K and L, as each of them accentuated a particular part or phase of the evidence, and failed to state any proposition of law applicable to the case.

Under the evidence in the case the question of the walking stick which ivas carried by the deceased’s father being or not being a deadly weapon was for the jury, under proper instructions of the court. It follows that charge M was properly refused. — Tribble v. State, 145 Ala. 23, 40 South. 938.

A statement that one entered into a fight willingly does not necessarily import that at the time of his entrance into it there was no impending peril to his life or person from an assault being made upon him. Though such peril then existed, yet if he chose to enter into- the fight when with safety to himself he could have avoided the peril without fighting, he properly may be said to have fought willingly. This statement discloses an inaccuracy in charge O which justified the court’s refusal to give it.

Charge R was bad in omitting any mention of the duty to retreat.

We find nothing in the record which affords to the appellant just ground of complaint of the judgment appealed from.

Affirmed.