129 Ala. 85 | Ala. | 1900
That the. door of defendant’s residence was broken and battered several weeks after the homicide was not a circumstance which could aid in determining the character of the homicide and was plainly irrelevant to the issue tried. In criminal cases, the presumption of injury which ordinarily arises from the admission of incompetent evidence will be held to apply wherever the court cannot be satisfied that the defendant was not prejudiced by such admission.—Maxwell v. State, 89 Ala. 150; Code, § 4333. The evidence referred to may have led to the inferences that the de
Charge 1 requested by defendant is in form the assertion of abstract proposition, applicable to all cases where a felonious and forcible assault is committed by the person killed upon the slayer without regard to the place or circumstances of the occurrence. As such it is incorrect because it takes no account of the principle that in homicides occurring in personal encounters the slayer though attacked with felonious intent, to be excused of killing his adversary must be free from fault in bringing on the difficulty, (Wilkins v. State, 98 Ala. 1) ; and the charge also pretermits the duty of retreat which in many 'cases and according to circumstances, the law imposes on one attacked elsewhere than in his habitation.—Storey v. State, 71 Ala. 338; Evans v. State, 109 Ala. 11; Carter v. State, 82 Ala. 13.
The facts hypothesized in refused charge 2 would .not alone have given the defendant the right to kill the deceased as is asserted in the charge.
There was no error in the part of the oral charge excepted to. If the oral charge was not sufficiently full and explicit, the remedy was by requesting further instructions.
IleA'ersed and remanded.