Hendricks v. State , 122 Ala. 42 ( 1898 )

HARALSON, J.

— Charge A requested by defendant and refused was an incorrect instruction, certainly for the reason that it ignores reference to present impending peril to life or great bodily harm, real or apparent, and opportunity to retreat. — Naugher v. The State, 105 Ala. 29; Howard v. The State, 110 Ala. 92.

Charges C, D, E and F were each erroneous instructions. The one marked C, in its last hypothesis, after having stated the first as a basis therefor, when properly construed means, as if it read: “If tlie jury do not fur-' ther believe beyond a reasonable doubt, (both) that the said defendant was at fault in bringing on the difficulty, .and (also that he) could not have escaped without increasing his danger,” etc. If the defendant was at fault in bringing on tlie difficulty, and the jury should have so believed, there remained no necessity for proof, or the belief of facts proved, as further hypothesized in the charge, touching the duty of retreat. He could not be heard to urge, in his own justification, a necessity for the killing which was produced by his own wrongful act. The charge exacted too high a degree of proof. — Boulden v. The State, 102 Ala. 79; Storey v. The State, 71 Ala. 329.

Charge D misplaces the burden of proof, in that it requires the State to disprove, beyond reasonable doubt, some of the elements of self defense, the burden of proving which was on the defendant. There exists no necessity for a repetition of the rule on this subject so frequently laid down by us. — Scoggins v. The State, 120 Ala. 369; Linehan v. The State, 113 Ala. 70, 84; Compton v. The State, 110 Ala. 24, 37; Howard v. The State, 110 Ala. 92; Miller v. The State, 107 Ala. 41; Naugher v. The State, 105 Ala. 29; Holmes v. The State, 100 Ala. 80.

Without further criticising charge E, or passing on its merits otherwise, it is sufficient to say for its condemnation, that the expression, “without being subjected to present impending danger, real or apparent,” etc., where it occurs in the latter part of said charge is not the equivalent of a statement, that defendant was not under duty to retreat, unless he could do so safely, or without increasing his peril.

Charge E, required the State to prove beyond reasonable doubt as a condition for conviction, that Stephens, the party assaulted, did not have his gun when he went to the door of his house and was shot, and did not snap his gun at defendant. No such burden rested on the State.

Let the judgment and sentence of the court below be affirmed.

Affirmed.