55 So. 801 | Ala. | 1911
Under the law, the copy of the venire served on the defendant by the sheriff does not have to show what special jurors as drawn by the court had been summoned, as distinguished from those drawn and summoned for the week.
Charge 1, requested by the defendant, was held good in the case of George v. State, 145 Ala. 42, 40 South. 961, 117 Am. St. Rep. 17. Whether abstract in said case or not does not appear from the report of same; it evidently was not abstract or, we would not have held that it should have been given. It is abstract, however, in the case at bar, as there was no evidence of an actual or threatened assault with the hand or fist, as the only assault threatened was with a billiard ball, and the refusal of same was not error.
Charge 4, requested by the defendant, should have been given. The defendant had the right to go to his place of business without being placed at fault in bringing on the difficulty, and the charge was not abstract, as there was not the slightest proof that he provoked the deceased at the time of the homicide into an attempted assault on him, if one there was, other than by merely appearing in his own place of business, where he had the right to go. — Andrews v. State, 159 Ala. 14, 48 South. 858.
There was no error in refusing charges 6, 12, and 14, requested by the defendant. They each, in authorizing
Charge 7, requested by the defendant, should have been given. The defendant was under no duty to retreat, and there was no evidence that he was at fault in bringing on the difficulty, other than his mere appearance in his own place of business, and his firing on the deceased, and he should not have been convicted, if the jury entertained a reasonable doubt whether he acted upon the well-grounded and reasonable belief that it was necessary to shoot to take the' life of Snyder, to save himself from great bodily harm or from death, or that he shot before such impending necessity arose.— Harris v. State, 96 Ala. 24, 11 South. 255.
Nor can we say that the charge was abstract, as the defendant’s evidence, if believed by the jury, furnished proof from which they could infer that the defendant was about to be attacked by Snyder in such a way as to produce death or serious bodily harm, and there was also proof of bad blood and previous threats made by the deceased to take the defendant’s life, and that they had been communicated to him.
There was no error in refusing charges 9 and 10 requested by the defendant. They pretermit an honest belief on the part of the defendant as to whether or not the deceased was about to attack him, a fact hypothesized in the George Case, supra. Moreover charge 9 invaded' the province of the jury by assuming that the threatened attack with a billiard ball was such a dangerous one as would authorize the defendant to shoot, when it was a question for the jury to determine wheth
• The rulings upon the evidence have been fully considered, and no reversible error in that respect has been found, and many of the objections are frivolous. On the other hand, the trial court permitted considerable latitude, both on the part of the state and the defendant, in going into details as to' previous difficulties and transactions, but no error is found in the evidence which would work a reversal of the case.
For the errors above' suggested, the judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.