4 Div. 757. | Ala. Ct. App. | Apr 11, 1922
Under an indictment for murder in the first degree, the defendant was convicted of murder in the second degree.
The conclusion is unescapable that the jury was charged in this case that, before they would be warranted in reaching a verdict of manslaughter in the first degree, they must believe that the defendant was free from fault in bringing on the difficulty. Such is not the law. Freedom from fault, real or apparent danger, and retreat without increasing danger are elements of self-defense, but neither one nor all must be shown in order for the defendant to be convicted of as low a degree of homicide as manslaughter; in fact, they have no place or legal effect in a consideration of this degree of homicide. If it is necessary to show one, it is necessary to show all. The effect of the charge as excepted to in this case was to affirmatively charge that the defendant could not be convicted of as low a degree of homicide as manslaughter in the first degree.
Other questions raised by this appeal will probably not arise on another trial; so they will not be here considered. For the error pointed out, the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.