Scoggins v. State , 120 Ala. 369 ( 1898 )

HARALSON, J.

The 1st charge given by the court asserts a correct proposition of law. The settled rule in this court is, that a defendant must be entirely free from fault in bringing on the difficulty, before he can set up the plea of self-defense. If the facts hypothesized were true, the defendants were not free from fault.—Ellis v. The State, ante, p. 333.

The 2d charge is in the substantial language of section 4856 (3727) of the Code, in defining murder in the second degree on the facts hypothesized, and the charge as given was a very proper instruction in a case of this character.

.-.The rule is familiar that no one can avail himself of the plea of self-defense, in a case of homicide, or assault with intent to murder, when the defendant was himself the aggressor, and willfully brought on himself, without legal excuse, the necessity for the killing, or the assault made. He who provokes a personal rencounter, in any .páse, thereby disables himself from relying on the plea ‘pi self-defense in justification of a blow which he struck during the rencounter.—Page v. The State, 69 Ala. 229; Leonard v. The State, 66 Ala. 461 Kimbrough v. The State, 62 Ala. 248. Refused charge numbered 3, under the undisputed evidence, is in contravention of the foregoing rule. Moreover, it ignores the duty of retreat by defendants if they could have done, so safely.

The 4th and 6th charges carefully ignore freedom from fault in defendants in provoking the rencounter in which tfyey .shot fhe party assaulted, as well as their duty to ‘retreat, and were properly refused. Besides, there- is no evidence that defendants in making the assault were ‘actuated by passion suddenly aroused. Their own admissions’show that no such passion existed, and that ’.their assault did not result therefrom.

The fifth charge was properly refused.’ It does not .sufficiently hypothesize freedom from fault in bringing bn difficulty. Defendants may have approached the ‘party'they assaulted, with no intention of bringing on a 'difficulty,- and yet, they may have been guilty of doing an, act. or saying something at the time, that made them 'the aggressors.

The evidence is without conflict that defendants were in fault in producing their alleged necessity to shoot the parly Assaulted. Their own evidence admits it. It was not proper, therefore, to hypothesize in their defense, as ‘this charge did, for the consideration and ascertainment ¡Dythe jury, a fact as doubtful, which the defendants ■themselves admitted tb be true.

From what lias been said, it will appear, that there was no. error in sustaining’the objections to the questions propounded by defendants to their witness, Annie Scoggins. There is no question of self-defense in the case, the evidence being without conflict, as has been stated, that defendants were in fault in bringing on the difficulty.

We find no error in the record, and the judgment and sentence of the court below are affirmed.

Affirmed.