A general charge was given the jury, lucid and accurate in its definition of the various degrees of criminal homicide, of the facts which must concur to constitute the one or the other, and the strength of evidence which would authorize a conviction. In this charge is embodied this paragraph: “ To justify the taking of life there must be an imperious necessity existing to prevent the commission of a felony, or great bodily harm, or such appearance of necessity as would impress the mind of a reasonable, prudent man that it actually existed. And if you believe from the evidence, beyond reasonable doubt, that the defendant Eiland took the life of Davis, the deceased, without the existence, or apparent existence, at the time of the killing, of this imperious necessity, he is not guiltless. This necessity cannot be said to have existed if the • defendant could have avoided the combat without danger to his life or limb; or if the defendant voluntarily brought on the combat. A man cannot create a necessity and then claim the benefit of it.” ■ An exception was reserved to so much of this charge as asserts, “ that the necessity which would authorize a man to take the life of his assailant must be imperious.” Among other charges requested by the defendant was the following: “ That in this State a person is not bound to retreat from his assailant when attacked, if by so
Confining our inquiries as to the general charge of the court to the matter of the exception, we cannot declare it erroneous. Necessity only, real or appearing to be real, can justify the taking of human life. In the leading case of Oliver v. State (17 Ala. 587), it is said, the law will justify the taking of life when it is done from necessity, to prevent the commission of a felony, or to preserve one’s own life or his person from great bodily harm.” Again : “ To justify the taking of life there must be an imperious necessity to prevent the commission of a felony, or great bodily harm. Without this necessity, the law, although under some circumstances it will mitigate the crime to manslaughter, cannot hold the party slaying altogether justified.” Subsequent decisions, varying but little in language, affirm the same principle. Holmes v. State, 24 Ala. 67 ; Noles v. State, 26 Ala. 31; Hughey v. State, 47 Ala. 97. If it was apprehended that the charge, under the particular facts of, the case, had a tendency to mislead the jury, to impress them with the conviction that there must be something more than an apparent pressing necessity, that the defendant should take the life of the deceased to save himself from great bodily hai’m, an explanatory charge should have been requested. It is not the practice of this court to reverse, in civil or criminal cases, because a charge given by the court has a tendency to mislead. Such must be its inevitable effect, or the party complaining to procure a reversal must have asked a charge obviating the misleading tendency. 1 Brick. Dig. 344, § 129.
It is insisted the court erred in the qualification attached to the charge given, at the request of the defendant. In the view we have expressed, the qualification is not erroneous in point of law ; but that being conceded, the power of the court to add any qualification to a charge in writing, given on request of either party, is denied ; and in support of the propo
The charge could have been properly refused. It has an immediate tendency to mislead the jury; and if given without explanation, would probably have induced them to believe that any peril to the person, though it was of a mere indignity, or of a mere battery, from which great bodily harm could not have been reasonably apprehended, would justify the taking of life, if it could not be escaped by retreat, or if retreat would increase the peril of it. Life cannot be taken to avert any other than a felonious assault, or an attempt to commit a forcible felony. If an assault is not felonious, however it may mitigate, it cannot justify a homicide. If a felonious assault is so violent that the assailed cannot retreat from it without manifest danger to his life, or of enormous bodily harm, the duty of retreat does not
The first charge given on request of the solicitor seems to us to assert only the recognized general principle that a person who has slain another cannot urge, in justification of the killing, a necessity produced by his own unlawful or wrongful act. Cases on Self Def. 220.
The second charge given on request of the solicitor, when applied to the evidence, we hold, asserts a correct proposition. In Pierson v. State (12 Ala. 149), it is held, and as we think correctly, that the common law of this State on the subject of homicide is derived from, and the same as the common law of England; and when that law requires the person assailed to decline the combat, or to retreat before he will be excused in taking the life of his adversary, our law requires the same. There may be cases of murderous assault, or of assaults with intent to commit other atrocious felonies, from which it is not the duty of him who is assailed to retreat. When, however, the assault is made on sudden quarrel, and a mutual combat ensues, retreat, if possible to avoid the threatened danger, is a duty. For as is said in Commonwealth v. Drum (58 Penn. 1), “ when it comes to a question whether one man shall flee or another shall live, the law decides that the former shall flee rather than that the latter shall die.”
The eighth charge requested by the defendant is rather involved and confused. On the argument we were inclined to the opinion its refusal was erroneous. A more careful examination leaves us in doubt as to its true meaning. The law is that when life is taken with a deadly weapon malice is presumed, for the inference is that the natural or probable effect of any act deliberately done is intended by its actor. Whart. Am. Orim. Law, § 944. It is the peculiar province of the jury, however, to draw the presumptions or inferences from the facts in evidence. When the circumstances attending the killing are shown, no one fact should be singled out and disconnected from the other evidence, and malice, or any other necessary fact inferred or presumed from it. Whether from all the facts malice is fairly to be presumed, the jury should determine. In Murphy v. State (37 Ala. 142), the circuit court had instructed the jury that when a killing has been proved, the law presumes malice, unless the evidence which proves the killing repels the
On the trial evidence was given tending to show the bad character of the deceased for turbulence, violence, and revenge-fulness. -In view of this evidence, the court, at the request of the solicitor, charged the jury: “If there are no acts or demonstrations, or threats at the time of the killing, then no matter if his character is violent or turbulent, the killing is not justified or excused; and a mere threat of the deceased, ‘ Come to me, and I will whip you,’ is not such a threat as can invoke a violent or turbulent character for its illustration.” The principle to be deduced from our decisions is, that the bad character of the deceased, of itself, cannot lessen the criminality of his killing. As a mere abstract proposition, or isolated fact, it should have no influence in determining the guilt of the accused. Whatever may be' his character for violence, turbulence, recklessness, and vindictiveness, the man is under the protection of the law, and it is as great a crime to take his life as it is the life of the most quiet, orderly, and law-abiding citizen. But evidence of his bad character for turbulence, violence, recklessness, desperation, and revengefulness should be received when it illustrates, or tends to illustrate the circumstances attending the homicide; when it qualifies, explains, and gives meaning and point to the threats or conduct of the deceased at the time of the killing. The rule must not be understood to excuse the taking of life because the character of the man is bad. Nor, on the other hand, must it be limited to cases in which the degree of homicide is doubtful; or in
Confessions and declarations made by the defendant in reference to the killing, and its attendant circumstances, were
For the errors we have noticed, the judgment must be reversed, and the cause remanded. The prisoner will remain in custody until discharged by due course of law.