Owen v. State

Mar 18, 1919
7 Div. 591.
Reporters:
, ,
Before:
Brown
BROWN, P. J.

[1] The materiality of the testimony sought to be elicited by the question, “Wasn’t the custom of your father, when you were ‍​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌‌​​‌​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​‌​​​‌‌​‌​​​​‍not in calling distance, for him to whistle between his fingers?” asked the witness John Orbett Brown on cross-examination, was not apparent from the question itself or from the evidence in the case, and its materiality was not disclosed by statement of counsel, and the ruling.of ‍​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌‌​​‌​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​‌​​​‌‌​‌​​​​‍the court on the objection was free from error. Sellers v. State, 7 Ala. App. 78, 61 South. 485; McConnell v. State, 13 Ala. App. 80, 69 South. 333; Tittle v. State, 15 Ala. App. 306, 73 South. 142.

[2, 3] To constitute the basis of “apparent imminent peril” as an element of self-defense, ‍​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌‌​​‌​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​‌​​​‌‌​‌​​​​‍the circumstances surrounding the defendant must be such as to impress a reasonable man that the defendant was in imminent peril of losing his life or of suffering great bodily harm at the hands of the person slain, and the defendant must entertain an honest belief ‍​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌‌​​‌​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​‌​​​‌‌​‌​​​​‍that he is in actual danger at the time he strikes. Cain v. State, 77 South. 453, 2 and authorities there cited. Charge 1 refused to defendant is faulty for not clearly stating *30 this doctrine, and, besides, it pretermits the defendants’ freedom from fault and the duty to retreat. Parris ‍​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌‌​​‌​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​‌​​​‌‌​‌​​​​‍v. State, 175 Ala. 1, 57 South. 857.

This disposes of the only two questions presented. There is no error in the record.

Affirmed.