Brinkley v. State, 89 Ala. 34

Brinkley v. State

89 Ala. 34 | Ala. | 1889

SOMERVILLE, J.

The killing of the deceased in the present case occurred in the house of the defendant, being perpetrated by shooting with a pistol. The evidence tended to show that the deceased had been guilty of profanity and indecent behavior, and was for this reason ordered by the defendant to leave the premises, whereupon an altercation ensued between them, which resulted in the killing.

The court, among other things, charged the jury, that “it was the duty of the defendant to avoid the killing, if he *36could'have done so without danger to himself.” This charge was, in our opinion, erroneous, in ignoring both of the above stated phases of the evidence. The defendant could probably have avoided the necessity of the killing, by retreating from combat, and taking refuge in some place of safety. So he might have accomplished the same end by abstaining from administering any rebuke to the deceased for his alleged indecent conduct. Each of these courses might possibly have been resorted to without the least danger. Yet, as the defendant was in his own house and domicil, he was under no obligation to retreat. An assailed person is not bound to retreat from his own house, to avoid killing his assailant, even though a retreat could be safely made. — Jones v. State, 76 Ala. 8; Cary v. State, Ib. 78; Wharton on Homicide, § 541. So, if he was, under the circumstances of the case, justifiable in ordering or expelling the deceased from the premises, he would be under no legal necessity to avoid the altercation by yielding the right in question, as a mode of avoiding all apprehended violence. The charge assumed the contrary.

The statement of the witness, that the dance in which the deceased was engaged prior to the killing was an “indecent” one, was a mere expression of opinion, and not the statement of a fact. The objection to it was properly sustained.

We need not pass on the objection to the colloquy between the juror Blue and the trial judge, as it will not probably recur on another trial.

The other rulings of the court have been examined, and we discover no error in any of them, except the portion of the court’s general charge numbered 2, which should not have been given. These charges involve questions too often considered by us to require discussion.

The judgment is reversed, and the cause remanded for a new trial. In the meanwhile, the defendant will be retained in custody until discharged by due course of law.