97 So. 763 | Ala. Ct. App. | 1923
The defendant insists he is entitled to a reversal of the judgment because the record proper fails to show a special venire drawn, summoned, and served on defendant as in capital cases made and provided, or a waiver thereof entered of record, as is required by section 7264 of the Code of 1907.
An indictment for murder in the first degree embraces charges of all the lesser degrees of homicide, as well as certain crimes of a lesser degree. A conviction of a lesser degree of crime is an acquittal of all the higher degrees of the crime covered by the indictment. This court has consistently held that, where the conviction is for a lower degree of the crime charged in the indictment, rulings of the court affecting and relating solely to the higher crime, of which, by a conviction for the lesser, the defendant was acquitted, would, if error, be without injury under Supreme Court rule 45 (61 So. ix). Rigell v. State,
The rulings in the cases supra were on charges and evidence, but in Leonard v. State,
There are certain charges appearing in the record proper, preceded by a statement of the clerk that such charges were requested by the defendant and refused by the court, but none of these charges are so indorsed as *411
required by Acts 1915, p. 815. We cannot consider them. Wimberly v. State,
The court, during the delivery of its oral charge, said:
"But, if you find that he [defendant] could have retreated in safety to himself, without having to take the life of Fred Ayers, then, gentlemen, this defendant cannot invoke self-defense."
In reserving exception to the court's oral charge, the defendant excepted to the following as being parts of the charge:
"If you find that the defendant could have retreated in safety to himself, then he cannot invoke the doctrine of self-defense." — and "if you find that he [the defendant] had an open and safe way of retreat to safety, he cannot invoke the doctrine of self-defense."
Under the ruling in the case of Ex parte Cowart,
It is true that afterwards in the oral charge and in a different connection the court stated the correct rule of self-defense as applicable to this case, which did not require retreat on the part of defendant, but nowhere in the oral charge or by charge in writing is this statement specifically modified or corrected. It therefore must stand and be considered as a part of the court's oral charge to the jury, by which they were to be governed in weighing the evidence and arriving at a verdict. This charge of the court puts too great a burden on the defendant. The mode of escape must have been reasonably apparent to the defendant. The facts in a case might show an absolutely safe way of retreat, and yet, if such way was not reasonably apparent to defendant, it would not deprive him of his right to strike in defense of his life or limb. Love v. State,
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.