Brake v. State

WALKER, P. J.

— There ivas evidence tending to prove that when the fatal shot was fired the defendant was in a street in the town of Hartselle, in front of a livery stable in which he was an employe. That was not a place from which the law excused him from retreating if he could have done so in safety. — Perry v. State, 94 Ala. 25, 10 South. 650; Lee v. State, 92 Ala. 15, 9 South. 407, 25 Am. St. Rep. 17.

A number of the written charges requested by the defendant were faulty in that they ignored the inquiry as to his duty to retreat. The existence of such a fault in each of the charges B, D, F, H, L,.R, and S justified the court in refusing to give them.

There being evidence in the case to support a finding that the defendant was guilty of manslaughter in the first degree, written charges E, G, K, and N were properly refused.

Charge M, requested by the. defendant was properly refused because of its failure to hypothesize the reasonableness of the defendant’s belief that he was in danger of suffering grievous bodily harm. — Jackson v. State, 78 Ala. 471.

The burden is not upon the state to prove that there was open to the defendant a reasonable mode of escape, which he could have taken without endangering his safety. — Cleveland v. State, 86 Ala. 1, 5 South. 426. It follows that charge P, requested by the defendant, was properly refused.

The remaining charges, which were refused to the defendant, were either unintelligible, or stated a proposition which was embraced in a charge given at his instance.

Charges dealing with the offense of murder, which were given at the instance of the state, need not he considered, as the defendant was convicted of manslaughter in the first degre. — Bluett v. State, 151 Ala. 41, 44 South. 84.

Obviously appellant has nothing to complain of in any of the charges given at the request of the state.

No reversible error is found in the record.

Affirmed.