86 Ala. 13 | Ala. | 1888
The first error urged relates to the refusal of the court to grant a change of venue. By the statute, a person charged with an indictable offense, who desires to have his trial removed to another county, must specifically set forth, under oath, the reason why he can not have a fair and impartial trial in the county in which the indictment is found. The application must be made as early as practicable before the trial, but may be made after conviction, on a new trial being granted. — Code, 1886, § 4485. The homicide was committed in May, 1887. The indictment was returned and filed in court, and the defendant was tried, in August of the same year. On this trial, he was convicted of murder in the second degree. On appeal, the judgment was reversed, in January, 1888. At the February term, 1888, the case was continued, at the instance of the defendant. On August 7, 1888, the defendant being present in court, the fifteenth day of the same month was set for his trial. On the latter day, after the State had announced ready for trial, application for the change of venue was made for the first time. The reason assigned for the delay is, that the defendant was confined in jail until May 3, 1888, and had been unable to secure the information upon which the application is founded.
It is manifest that all the material facts, set forth in the affidavit of the defendant in support of the application,' transpired, if not before his first conviction, certainly before February, 1888, except the election of Powell, a brother of the deceased, and of Parker, who, it is alleged, prepared and circulated petitions to have the defendant denied bail after
It is conceded, that if the charge requested by the defendant had instructed the jury, in terms, to acquit the defendant upon its hypothesis being found true, it would be obnoxious to the objection, that it pretermits the duty of retreat. Such is the legal effect of the charge, the same as if expressed in terms. It instructs the bury, that if' the hypothetical facts are believed, the defendant was authorized to anticipate the deceased, and strike first — in other words, to strike in self-defense. If so authorized, an acquittal should, of necessity, follow. Several charges, substantially asserting the same proposition, were considered on the former appeal, and held to have been properly refused Fallin v. State, 83 Ala. 5.
There is no error in the record.
Affirmed.