Collins v. State , 17 Ala. App. 186 ( 1919 )

The defendant was indicted for murder in the second degree, was tried and convicted for the offense of manslaughter in the first degree.

On this appeal the only insistence of error is the refusal of several special charges requested in writing by the defendant.

Charge 1 was the general affirmative charge in favor of the defendant. Under the evidence in this case the defendant was not entitled to this charge. The affirmative charge should not be given where the evidence is in conflict as to any material fact in issue, or where from the evidence reasonable inferences might be drawn unfavorable to the party requesting such charge.

Charge 2 was properly refused, as it pretermits an honest belief of peril by defendant at the time he fired the fatal shot. It also omits any reference to freedom from fault in provoking or bringing on the difficulty, and also the duty devolving upon the defendant to retreat. Gaston v. State,161 Ala. 37, 49 So. 876; Hutchinson v. State, 15 Ala. App. 96,72 So. 572; Langston v. State, 75 So. 715.¹ Furthermore, the propositions of law intended to be embodied in this charge were fully covered by the oral charge of the court.

Charge 3 is elliptical, and as written is without meaning. If the word "thaking" is intended for "taking," even then this charge does not state a correct proposition of law. A party is not justified in taking the life of another unless he is entirely free from fault in provoking or bringing on the difficulty, and there is no reasonable mode of escape open to him without increasing his danger. The court did not err in refusing this charge.

Charge 4 was properly refused. It assumes that defendant was free from fault and that he could not retreat without increasing his peril; it also pretermits an honest belief of peril on the part of the defendant. The charge is bad also for the reason that it inaptly uses the word "hard" where the word "harm" was evidently intended. Authorities supra; Herring v. State, 14 Ala. App. 93, 71 So. 974; Fortner v. State,12 Ala. App. 179, 67 So. 720.

Charge 5 also assumes that defendant was free from fault, and it does not require the defendant to have believed that if he attempted to retreat he would have thereby increased his danger. It also pretermits an honest belief on the defendant's part that the infliction of bodily harm was imminent. Moreover, the principles of law attempted to be embodied in this charge were fully and fairly covered by the oral charge of the court. For these several reasons the court properly ruled in connection with this charge. Watson v. State, 15 Ala. App. 39,72 So. 569; Hutchinson v. State, 15 Ala. App. 96, 72 So. 572; Acts 1915, p. 815; Hardley v. State, 202 Ala. 24,79 So. 362, 364.

Charge 6 was bad, and there was no error in its refusal. This charge in effect submits a question of law to the jury. It does not define the elements of self-defense. Powell v. State,5 Ala. App. 75, 59 So. 530; Roden v. State, 97 Ala. 54,12 So. 419; Gilmore v. State, 126 Ala. 20, 39, 28 So. 595; Adams v. State, 133 Ala. 166, 31 So. 851; Nearer v. State,198 Ala. 1, 73 So. 429; Greer v. State, 156 Ala. 15,47 So. 300.

A careful examination of the entire record fails to disclose any error of a reversible nature; therefore the judgment of conviction in the circuit court of Chambers county is affirmed.

Affirmed.

¹ 16 Ala. App. 123.