75 So. 176 | Ala. Ct. App. | 1917
Charge 1 refused to the defendant ignores the burden resting upon him, essential to his right to plead self-defense, to show that he was in impending peril of life or limb at the time he fired on Givan with a deadly weapon. It also assumes that Givan, after defendant's withdrawal in good faith, pursued him, or renewed the difficulty and became the assailant. Brewer v. State,
Charge 2, as worded, has a tendency to mislead to the conclusion that the court entertained the view that Givan assaulted or threatened to assault defendant. It was subject to the further objection that it predicated the right of self-defense on a "threatened assault made by him," leaving out of consideration the presence of an overt act or attempt to carry into effect such "threatened assault," thereby producing impending peril, real or apparent, to the defendant's life or limb.
There was no exception to the oral charge of the court, and no objection to the verdict of the jury or the action of the court in sentencing the defendant, and hence nothing to review. McPherson v. State (Sup.)
Affirmed.
