Killen v. State

The particulars of the previous difficulty occurring at midnight on the night before the homicide and the fact of deceased's intoxication at that time were not material. Allsup v. State, 72 So. 599;¹ Gregory v. State, 140 Ala. 16,37 So. 259. The testimony of the witness Lester to the effect that, "He did not know whether he (Hill) was drinking or not, but he smelled something on his breath," when he picked him up after he was shot, does not show that deceased was intoxicated at the time of the fatal difficulty, and was not sufficient as a predicate to make material the deceased's previous intoxication.

Charge B given at the instance of the state has a tendency to inculcate the idea that the motive or purpose prompting the act, rather than the result or effect of the act, would put the accused at fault and cut off the right of self-defense. The law is that he must be free from fault in bringing about the condition that makes it necessary for him to kill in order to save himself from grievous harm or death. Brewer v. State,160 Ala. 66, 49 So. 336; Langham v. State, 12 Ala. App. 46,68 So. 504. To cut off the right of self-defense under this doctrine the conduct, act, or word of the accused must have in some degree contributed to produce the condition that made it necessary for him to act in preserving himself from grievous harm or death.

Charge E given for the state asserted a correct proposition of law. Hornsby v. State, 94 Ala. 56, 10 So. 522; 1 Mayf. Dig. 766, § 42. The return to the certiorari shows that charge 65 requested by the defendant was given.

We find no other error in the record.

Reversed and remanded.

¹ 15 Ala. App. 121.