Adams v. State

May 15, 1917
6 Div. 293.
Versions:75 So. 641
16 Ala. App. 93
1917 Ala. App. LEXIS 158
BROWN, P. J.

The ruling of the court on the admission of the evidence was free from error.

[1-3] While, “for the purpose of self-defense which stops short of killing or attempting to kill, there is no duty to retreat” (Beyer v. B. R. L. & P. Co., 186 Ala. 56, 64 South. 609; Blankenship v. State, 11 Ala. App. 125, 65 South. 860), it was the right of the solicitor on cross-examination to inquire as to the conduct of the defendant on the occasion of the assault, and the fact that the defendant made no effort to avoid the difficulty by leaving the place of the difficulty was pertinent to the question as to whether he entered the fight willingly, which, if shown, would cut off the right of the defendant to plead self-defense. Howell v. State, 79 Ala. 283; McWilliams v. State, 12 Ala. App. 92, 67 South. 735.

[4] That part of the oral charge of the court instructing the jury that in considering the testimony of the defendant they “must look to the fact that he is the defendant,” etc., was invasive of the province of the jury, and must work a reversal of the judgment of conviction. Tucker v. State, 167 Ala. 1, 52 South. 464; Roberson v. State, 175 Ala. 15, 57 South. 829; Swain v. State, 8 Ala. App. 26, 62 South. 446.

We find no other error in the record; but, for the error pointed out, the judgment is reversed, and the cause remanded.

Reversed' and remanded.