Stitt v. State

91 Ala. 10 | Ala. | 1890

McCLELLAN, J.

It appears from the bill of exceptions that the “ defendant objected to. all questions asked witness about the first difficulty, and the court overruled his objections; to which the defendant duly excepted.” Whether the “ first” difficulty, thus referred to, was not in point of fact only a part of ■one continuous transaction, is not very clear from the record; but, upon the whole testimony, we are of the opinion, that all that occurred between the parties leading up to and culminating in the killing, was within the res gestee of the act charged, and, therefore, properly allowed to go to the jury.—Smith v. State, 88 Ala. 73; Martin v. State, 89 Ala. 115.

The concession, however, that such was not the case — that the first difficulty was not a part of the res gestes of the homicide — -will not avail the appellant. It was clearly competent for the State to prove a former difficulty, and any threats made in connection therewith, though not the particulars of it. Lawrence v. State, 84 Ala. 424: Ross v. State, 62 Ala. 224. "What the witness said “ about the first difficulty,” embraced not only the fact of such difficulty, but threats therein made-by the defendant against the deceased. The objection went to-the whole evidence, and, if allowed, would have excluded this clearly competent testimony, as well as that which gave the particulars of the former difficulty. Under our uniform rulings, it was properly overruled on this ground, if not on the first consideration adverted to.—Lawrence v. State, supra; Lowe v. State, 88 Ala. 8; Badders v. Davis, 88 Ala. 367; Coleman v. State, 87 Ala. 14; Marks v. State, 87 Ala. 99.

The only other exception reserved is thus presented by the -bill of exceptions: “The defendant asked that the following special charges in writing be given to the jury, and the court refused the same ; to which refusal the defendant duly excepted.” This is manifestly the reservation of but one general exception to the refusal of the court to give several charges— five in number — and will not avail the appellant, unless each one of the instructions, so requested, asserts a correct proposition of law.—Bedwell v. Bedwell, 77 Ala. 587; E. T., V. &. G. R. R. Co. v. Cary, 81 Ala. 159; Ins. Co. v. Moog, 81 Ala. 335; Stevenson v. Moody, 83 Ala. 418; Black v. Pratt C. & C. Co., 85 Ala. 504.

The first of these charges is in the following language : “ If the jury are satisfied from the evidence, that defendant acted in self-defense, then the burden of proof is upon the State to show to a moral certainty, and to the exclusion of any reasonable doubt, both the fact that the defendant brought on the difficulty, and to a moral certainty, and beyond all reasonable-doubt, that retreat would have been safe; and if the jury have a reasonable doubt upon these two last propositions, or either of them, then defendant was not guilty, and they must acquit.” This instruction is self-contradictory and confusing, in that it assumes that self-defense may be made out without proof that no safe retreat was open to defendant; and it is affirmatively bad in casting upon the prosecution the burden of proving that the defendant could have safely retreated. This is not the law. To the substantiation of the plea of self-defense, it is upon the defendant to negative a reasonable and safe avenue of escape from the danger which threatens him. Such proof is an essential element of the right to take life, that life may be preserved.—Cleveland v. State, 86 Ala. 1; Gibson v. State, 89 Ala. 121.

It is unnecessary to determine whether the remaining charges embraced in this general exception are good or bad, abstractly considered. Whether they were sound or not, the result of this appeal must be the same. We may say, however, that at least three of the remaining four requests were faulty.

Affirmed.