91 Ala. 108 | Ala. | 1890
The exceptions reserved go only to the action of the trial court in refusing three charges requested by the defendants. Of these, the first required an acquittal, unless the jury could say they had an abiding and absolute belief of the guilt of the defendants. The measure of proof required by this instruction is too great — the degree of conviction of guilt is too high. An absolute belief of the truth of an alleged fact Avould exclude every doubt of its existence, conjectural, speculative, possible, unreasonable, as well as that reasonable doubt of guilt. Avhich alone justifies an acquittal. McKleroy v. State, 77 Ala. 95; Lundy v. State, ante, p. 100.
Charge No. 2 asserts no proposition of law bearing on the offense charged. It postulates certain facts with reference to the assault by one of the defendants, committed on a person (one Freeland) other than the deceased, and authorizes the jury to find, if they belieA'e these' facts, that said defendant had a right to strike Freeland, unless they further found that said defendant conspired with his brother, the other defendant, before or at the time of the commencement of the difficulty, to cut Deakle, the deceased. The action of the court on this instruction Avas manifestly proper. Each of the defendants, under a phase oí' the testimony found in this record, Avould have been Avhollv unjustified in cutting Deakle, however free from fault each of them may haAre been in their actions toward Freeland; and a charge which asserts only their rights against the latter, could have no other effect than to confuse the jury in their investigation and consideration of the real issue in the case — the guilt or innocence of the defendants of the murder of Deakle.
The third instruction asked for defendant proceeds on the theory, that one of the defendants, finding the other, his brother, in imminent peril of life or limb, had the right to strike and kill in his defense, although the difficulty was brought on by his brother, and notwithstanding the latter in the first instance might haAre 'declined the combat, or safely retreated from it, or might have retreated after his brother came upon the scene, and was thus advised of the situation. The theory is unsound. We need not go to the extent of holding that one may not strike in defense of his brother, though the latter Avas in fault in bringing on the difficulty, and might have avoided it, if he did not know of such fault or means of escape; but Ave do hold that the fatal blow
A charge requiring an acquittal of the party first engaged in the difficulty, had he delivered the fatal blow, without submitting the question of retreat to the jury, would be bad, and his brother can have no greater or other rights than would have been his.—Cleveland v. State, 86 Ala. 1; Gibson v. State, 89 Ala. 121.
This instruction, moreover, is open to the same objections taken above to the second charge. It goes to justify the killing of Deakle, because oí certain facts existing with respect toEreeland, with whom the difficulty first commenced, when the-jury might have found, both defendants free from laúlt'so far as Freeland was concerned, and wholly without excuse in respect of Deakle, who, a tendency of the evidence goes to show,, intervened in the difficulty in a pacific manner, and with pacific intentions, involving no necessity for his death.
The judgment of the City Court is affirmed.
