Naugher v. State, 105 Ala. 26

Naugher v. State

105 Ala. 26

Ala.

1894

Check Treatment

COLEMAN, J.

The defendant was indicted for murder which resulted on the trial in his conviction of murder in the second degree. The important question in the case аrises from the refusal of the court to give charge No. 1 requested by the defendant. Generally in order to sustain the plea of self-defense, it is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍incumbent upon the defendant to show, first, that at the time there was a nеcessity to take life, or that the circumstances were such as. t.o create in the mind of the defendant a reasonable belief that it was necessary in order to save life or to prevent great bodily harm; second, that there *30was no reasonable mode of retreat or escape ; and, third, it must not appear that the defendаnt provoked, or was at fault in bringing on the difficulty. The burden always rests upon the defendant to maintain the first of these propositions. The burden rests uрon the defendant to make good the second proposition, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍except in cases where it affirmatively appears from the evidence that there was no duty upon the defendant to retreаt, as where it is shown that the party assaulted was in his own house, or within the curtilаge or space usually occupied and used for the purpose of the house, or in some cases of felonious assault.—Goldsmith v. State, ante, p. 8; Goodwin v. The State, 102 Ala. 87; Harris v. The State, 96 Ala. 24; Christian v. The State, 96 Ala. 89; Jones v. The State, 76 Ala. 8; Lee v. The State, 92 Ala. 15. The burden, however, does not rest upon the defendant to show affirmatively that he was free from fault in .provoking or bringing on the difficulty. When the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ingredients of self-defense have been established, the burden is on the State to show that the dеfendant was not free from fault. This is the rule declared in Gibson’s Case, 89 Ala. 121, recognized in Webb’s Case, in 100 Ala. 52, and re-affirmed in the case of Holmes v. The State, 100 Ala. 80, 84. The charge undеr consideration ignores the duty of retreat, and also the question of defendant's being at fault in bringing on the difficulty. We are of opinion that the unсontradicted evidence shows that the fatal shooting occurrеd either within the defendant's dwelling house, or within the space under the same protection as his castle. Under the foregoing authorities, the charge was not objectionable in the respect that it ignored the duty of retreat. There is an entire ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍absence of evidence tеnding to show that the defendant was at fault in provoking or bringing on the difficulty. The burdеn to show this, as we have seen, rested upon the prosecution. Rеferring the charge to the evidence in the record, as well as the facts predicated in the charge, the facts negative fault on the part of the defendant. We are of opinion under the evidence in the case the court erred in refusing the defendant the benefit of charge No. 1 as requested.

Charge No. 2 was rightly refused. We can not say there was no éviaence to show that there was a difficulty between ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the deceased and defendant at or about’the time of thе shooting. The defendant himself testified to pre*31vious threats, a threat at the time of the shooting, by deceased to take his life, and a demоnstration calculated to impress upon his mind a reasonable belief that he was in imminent danger.

We do not see the legality or materiаlity of the testimony of the wife of Fonzo Hancock, to the effeсt that all the gun shells in the house had been used except one, but if this evidеnce had been competent, it was competent in rebuttal tо show that he fired his gun off two or three times afterwards.

The only purpose for which the evidence of shooting at the target was admissible was tо show that there was no purpose on the part of the deceased, Powell Hancock, to put in execution previous threats, and that the parties had become reconciled to each other.

Reversed and remanded.