Gibson v. State

126 Ala. 59 | Ala. | 1899

DOWDELL, J.

On the testimony of the “witnesses Ivey and Ohandlex’, the statements made by the deceased to these “witnesses in regard to the shooting from which his death resulted, were admissible in evidence as dying declarations.—McQueen v. State, 103 Ala. 12; McQueen v. State, 94 Ala. 50; Jordan v. State, 82 Ala. 1,

Charge No. 3 refused to the defendant, if it were faulty in no other respect, is bad in that it pretermits the doctrine of freedom from fault. As was forcibly said by this court in the case of Watkins v. State, 89 Ala. 88, 89, a man’s house is “his castle for purposes of defense. It cannot be turned into an arsenal for the purpose of offensive efforts against the lives of others. He cannot justify under a necessity which his own fault or wrong has contributed to produce.” There was evidence tending to show that the defendant was not free from fault and wrong which contributed to produce the necessity for him to shoot, if it can be said that such necessity existed.

The court very properly refused charge No. 13 requested by the defendant. This charge instructs the jury upon the facts postulated to find that the defendant was free from fault. The jury might find every fact hypothesized in the charge to be true, and yet find from other facts in evidence that the defendant was not free from fault in bringing on the difficulty. The charge withdrew from the jury the consideration of all the other evidence and from which they might have inferred that the defendant was at fault.

We find no error in the record, and the judgment of the court must be affirmed.