Holmes v. State

100 Ala. 80 | Ala. | 1893

COLEMAN, J.

The defendant was convicted of murder in the second degree. The first exception was to the action of the court, overruling an objection to the question, “Do you know of any bad feeling between defendant and deceased prior to the difficulty ?” It was competent to prove bad feeling as tending to show malice. “Bad feeling” is a fact to which a witness may testify. It stands in the category of health, sickness, good humor, anger, jest. Polk v. State, 62 Ala. 237. The next exception was to the ruling of the court, in sustaining an objection to the question “State whether or not the hoe that Henry Mann had was of such weight and strength, as that he could have killed a man within striking distance ?” The hoe and handle had been described to the jury. The fact attempted to be proven was within the knowledge of the jury, as much so as that of the witness. The witness was not an expert in any sense, and his opinion was worth no more than that of any other man. The objection was properly sustained. The next exceptions are to the refusal of the court to give certain instructions, which were requested by the defendant. Charge A. refused, ignores the question as to whether there was, or not, a reasonable way of escape to defendant, by which the necessity to strike might have been avoided, and charge B. places the burden upon the State to prove affirmatively, that defendant could nave escaped from the dificulty without increasing his peril. We are referred to the case of Brown v. The State, 83 Ala. 33. The doctrine declared in Brown’s case upon this point was repudiated in the subsequent case of Gibson v. The State, 89 Ala. 121. There can be no necessity to kill, if there is a way of retreat open to the slayer available by the exercise of reasonable prudence. Cleveland v. The State, 86 Ala. 2; Lewis v. The State, 88 Ala. 11; Keith v. The State, 97 Ala. 32.

These principles sustain the ruling of the court as to charges A. B. C. and D. and there was no error in refusing them. It is well settled that the burden is not on the defendant, to prove affirmatively that he was free from fault in bringing on the difficulty. This burden rests upon the State, when a case of self-defense is made out by the defendant ; and if it appears that defendant was not free from fault in bringing on or provoking the difficulty, the law will not shield him from the consequences of committing a homicide, the result of his own fault, although at the time of the killing, there was a pressing necessity to strike, to save his own life, and there was no mode of escape. Authorities supra and cases cited. Webb’s case ante p. 47.

Charge “E” is argumentative and misleading, and was properly overruled. There is no error in the record and the judgment must be affirmed.

Affirmed.