Chenault v. StateChenault v. State
- Reporters:
- , ,
- Before:
- Samford
Thе evidence for the State tended to prove thе charge as laid in the indictment, *149 and that the assault had been made with a pistol. The evidence for the defendant tended to prove a clear case оf self defense, and that the defendant was free from fault in bringing on the difficulty; that he shot under an impending necessity to рrotect himself from death, or grievous bodily harm, and under circumstances wherein he could not retreat without inсreasing his peril.
In presenting the issues to the jury the Judge trying the сase, as a part of his oral charge, said: “Now then, did he use a pistol on this occasion, by shooting? If so, the law says a pistol is a deadly weapon. The law sаys malice may be presumed from the use of a deadly weapon in a case like this.” This excerpt from thе Court’s Oral Charge was properly excepted to by the defendant and presents for our consideration the question as to whether or not this was reversible errоr.
There are cases where the above quotаtion could, perhaps, be given without error; but where the facts would justify a finding of guilt in a lower degree, or an aсquittal, the charge is erroneous unless it has couplеd with it the additional statement “unless the evidence which рroves the killing rebuts the presumption.”
In Hornsby v. State, 94 Ala. 55, 10 So. 522, 526, in a case using a charge similar to the one at Bar it was said: “Whenever thеre are any facts testified to on a trial for murder, and which are necessary and are relied upon tо sustain the charge of murder, and a jury could legally infer from the facts proving the offense that the defendant аcted in self-defense, or the homicide was the result of sudden passion, engendered by sufficient provocаtion, and without malice, it is error to charge the jury as tо the presumptions arising from the use of a deadly weаpon, without accompanying such charge with the furthеr statement, ‘unless the evidence which proves the killing rеhuts the presumption.’ (Italics ours.) When the facts which prоve the killing, do not tend to rebut the presumption which the law raises from the use of a deadly weapon, then it bеcomes incumbent on the defendant by other evidence to .rebut the presumption, and, failing to meet this burden thе presumptions of law are conclusive against him.”
Thе above is quoted with approval in the case of Berry v. State, 209 Ala. 120, 95 So. 453.
For the reasons above given, the giving of thе charge excepted to is error to a revеrsal and, in addition to the above, we might add it was a charge upon the effect of the evidence without there being a* request in writing by the State.
Refused Charge One omits thаt‘element which .requires the defendant to be free from fault in bringing on the difficulty before he can invoke the doctrine of self defense.
Refused Charge B is abstract, and is calculated to mislead the jury.
We find no other error necessary for iis to consider.
For the error pointed out, the judgment is .reversed and the cause is remanded.
Reversed and remanded.