Slater v. StateSlater v. State
However it all was, there was ample testimony that Katie, both on this day, and on prior days, had stated to Sandy, and, inferentially, to others in his hearing, that she was going to kill him. In this state of the testimony he asked, on his trial in the court below, that the court give to the jury the following written charge, to wit:
“It is not necessary, under the evidence in this case, that defendant should have been actually in danger of death or great bodily harm at the time he killed Katie Witt, or that retreat would have really increased his peril, in order for him to be justified in shooting Katie Witt. He had the right to act on the appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of Katie Witt in the light of any threat that the evidence proves Katie Witt to have made against the defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had the right to shoot Katie Witt in his own defense, although as a matter of fact he was not in actual danger, and retreat would not have endangered his personal safety; and if the jury believed that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the State, and, if not shown, the jury should acquit the defendant.
“Refused.
“Wheeler, Judge.”
The learned trial judge gave, at defendant‘s (appellant‘s) request, a number of written charges. These, in connection with his oral charge, seem to have covered practically all phases of the applicable law, with the single exception of the matter of “threats” sought to be explained to the jury in the charge which we have quoted. We must hold the refusal of this charge to be reversible error. It is indistinguishable, if not in letter and form, certainly in substance, from written charge two dealt with in the opinion in Glass v. State, 201 Ala. 441, 78 So. 819. It was there held to be a good charge. It cannot be said to be abstract in the instant case. And see Buffalow v. State, 219 Ala. 407, 122 So. 633.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
BRICKEN, P. J., dissents.
Let the judgment be affirmed.
Affirmed.
On Rehearing.
Appellant insists that the affidavit upon which the original warrant was issued is not sufficient to support a conviction, and we are cited our case of Morrison v. State, 25 Ala. App. 330, 145 So. 582, in support of this contention. The law is as stated in others, the Morrison Case and of similar import, but the affidavit is not void and its defects must be taken advantage of in the trial court by demurrer and cannot be raised in this court for the first time.
Application overruled.
On Remandment.
The Supreme Court now holds that the affidavit in this case charges no offense and that proceedings under it are void. On authority of Ex parte Emma Jane Slater v. State, 230 Ala. 320, 162 So. 130, the judgment in this case is reversed and a judgment will here be rendered discharging the defendant.
Reversed and rendered.