Hackney v. State

Where the evidence which proves the homicide shows a present impending peril to life or limb, and a necessity, real or apparent, to take life, at a time or under circumstances not requiring the defendant to retreat, the state has the burden of proving beyond a reasonable doubt that the defendant was at fault or was not free from fault in bringing on the fatal difficulty. Roberson v. State, 183 Ala. 43, 62 So. 837; Prater v State,193 Ala. 40, 69 So. 539.

In the instant case the difficulty which resulted in the homicide took place wholly within defendant's home. He was therefore under no duty to retreat if he was free from fault in bringing on the difficulty. The evidence is without conflict that there was a pending pressing necessity to take life, both real and apparent. The burden was therefore on the state to prove beyond a reasonable doubt that the defendant was at fault in bringing on the difficulty. Fuller v. State, 16 Ala. App. 163,75 So. 879; Tyus v. State, 10 Ala. App. 10, 64 So. 516.

It would serve no good purpose to set out the evidence in this case. Suffice it to say: There appears to have been a very real and apparent necessity for the defendant to strike in order to defend his own life. There is no evidence tending to prove otherwise. Being in his own home, and free from fault, he was under no duty to retreat. The state offered no testimony which would authorize the jury to find that the defendant was at fault in bringing on the fatal difficulty. That being the case, the state has failed to make out its case, and the defendant is entitled to the general charge. For this error the judgment is reversed, and the cause is remanded.

Reversed and remanded.