88 Ala. 4 | Ala. | 1889
The general rule has often been declared, that the accused, charged with homicide, must
This rule, however, is not of absolute and universal application. An exception to it exists in cases where, although the defendant originally provoked the conflict, “ he withdraws from it in good faith, and clearly announces his desire for peace.” If he be pursued after this, his right of self-defense, though once lost, revives. “Of course,” says Mr. Wharton in referring to this modification of the rule, “there must be a real and bona fide surrender and withdrawal on his part; for, if there be not, then he will continue to be regarded as the aggressor.” — 1 Wharton’s Cr. Law (9th Ed.), § 486. The meaning of the principle is, that the law will always leave the original aggressor an opportunity to repent, before he takes the life of his adversary. Where, therefore, as said by Mr. Bishop, “ a combatant in good faith -withdraws as far as he can, really intending to abandon the conflict, and not merely to gain fresh strength, or some new advantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is- justified. But a mere colorable withdrawal avails nothing.” — Bishop’s Cr. Law (7th Ed.), § 871.
This exception to the general rule under discussion we recognize as a just one, and we fully approve it. But due caution must be observed by courts and juries in its application, as it involves a principle which is very liable to abuse. The question of the good or bad faith of the retreating party is of the utmost importance, and should generally be submitted to the jury in connection with the fact of retreat itself, especially where there is any room for conflicting inferences on this point from the evidence.
The first and third charges requested by the defendant were faulty, in withdrawing this question from the consideration of the jury, and they were, therefore, properly refused. — Sackett’s Instruction to Juries, 530.
The other three charges were entirely misleading, in ignoring the question as to who was the original aggressor in the conflict, and no facts are hypothesized which tend to bring the case within the exception above stated. — Storey's Case, 71 Ala. 330, supra.