Gordon v. State, 129 Ala. 113

Gordon v. State

129 Ala. 113 | Ala. | 1900

TYSON, J.

Manifestly tbe exclamation of those, upon hearing tbe pistol shot, some hundred yards away from tbe place of tbe shooting, that “David John has killed Littleton,” was but an expression of an opinion —an erroneous opinion at that.

Tbe defendant bad introduced evidence of the particulars of a former difficulty between defendant and deceased, and in rebuttal tbe State offered testimony of tbe particulars of tbe same difficulty. The refusal of tbe court to exclude tbe testimony offered by the State was not error; nor was tbe refusal of the court to limit tbe effect of this testimony improper. Tbe defendant having offered evidence detailing all tbe particulars of tbe former controversy between them, tbe State bad tbe *117right to bare the jury informed as to the deceased’s side of the controversy. The defendant, after introducing this evidence for the 'purpose of showing that he was not at fault in the matter, and actually declined a combat, it would be unfair to the prosecution not to permit the .State to show that he was in fact the aggressor and that he exhibited a disposition to bring on a difficulty. This in nowise infringes the general rule that evidence as to the particulars of the former difficulty should not be admitted, if objected to; but is simply the enforcement of the rule that where one party introduces illegal evidence, his adversary may rebut it by testimony of the same nature and character. Morgan v. The State, 88 Ala. 233; Winslow v. The State, 92 Ala. 78.

Charge No. 1 pretermits all reference to a consideration of the whole evidence by the jury and was misleading.—Nicholson v. The State, 117 Ala. 32.

It is clearly the law that the defendant was under the duty to retreat unless by doing so he would thereby have apparently placed himself in greater peril.—Carter v. The State, 82 Ala. 13 and authorities therein cited; Roden v. The State, 97 Ala. 54; McDaniel v. The State, 97 Ala. 14; Gilmore v. The State, 125 Ala. 21. And it is generally a question for the jury under all the evidence.—De Arman v. The State, 77 Ala. 10; McDaniel v. The State, supra. Defendant’s counsel concede this to be the law, but they contend that the charge under consideration submits this question of defendant’s duty to retreat to the jury. In this we cannot concur.

Affirmed.