Cain v. State

Jun 22, 1920
8 Div. 703.
Reporters:
, ,
Before:
Merritt
MERRITT, J.

.[1] The defendant was convicted of manslaughter in the first degree, his punishment being fixed at-five years in the penitentiary. During the trial the defendant sought to show that the deceased was under the influence of liquor the day she was killed. The court did not commit any error in refusing to allow this, for her condition during the day would shed no light on whether she was under such influence at the time of the killing. King v. State, 90 Ala. 616, 8 South. 856; Teague v. State, 144 Ala. 42, 40 South. 312.

[2] One theory of the defense was that the defendant was justified in the killing, for the reason that at the time deceased was killed,she (deceased) was attempting to take the life of defendant’s sister. The right is well settled in this state that the right of one to defend another is coextensive with the right of the other to defend himself, and the one who defends the other is upon no higher plane than the one defended; and so if the one defended is not free from fault in bringing on the difficulty,. his defender cannot be, for when one intervenes to defend another, even though the one be in imminent danger of life or limb, he does so at his peril, if he strikes in defense of one not free from fault in bringing on the difliculty. Gibson v. State, 91 Ala. 64, 9 South. 171; Karr v. State, 106 Ala. 1, 17 South. 328; Sherill v. State, 138 Ala. 3, 35 South. 129; Weaver v. State, 1 Ala. App. 48, 55 South. 956.

When a’ son in the necessary defense of his father kills another, his right to justify on the grounds of self-defense must have the same foundation as the act of the father would have hud, if he had committed, the homicide; and the father, as well as the son, must be in a position to invoke the doctrine of self-defense. Pearce v. State, 4 Ala. App. 33, 58 South. 996.

[3, 4] Written charge 32 does not state a correct proposition of law, and there was no *532 error in refusing it, for that it predicates the defendant’s right to take life in defense of his sister on the bona fide belief of the defendant as to the peril of his sister and of an existing necessity to strike, when bona fide belief is not sufficient. The condition must have existed as an actual fact. Weaver v. State, supra. Besides, the charge is practically covered by given written charges 29, 30, and possibly others.

[5] Charges 38 and 43 omit some of the elements necessary to constitute self-defense, and for this reason, if none other, are faulty.

Written charge 44 was covered by other written charges given at the request of the defendant, and its refusal was not error.

[6] Written charge. 1, given at the request of the state, correctly states the law. There is no error in the record, and the judgment is affirmed.

Affirmed.