130 Ala. 35 | Ala. | 1900
In Harkness v. The State, 129 Ala. 71, it was held, the writer then dissenting, that in cases of homieid.e though involving self-defense, the defendant is not entitled to prove that the deceased while making threats against him on a previous occasion, accompanied those threats with actual hostile demonstrations. That, ruling was on the ground that to so allow inquiry into particulars of a former difficulty would unduly multiply the. issues. A majority of the court adhere to that decision.
In the present case the defendant was permitted to prove that a few hours before the fatal shooting the deceased had assaulted him with a gun and that one Wait took hold of deceased to prevent him from shooting. The court then refused to allow the defendant to prove that when Wait so interfered, the deceased drew his gun on Wait and threatened to kill him. If it be conceded that such demonstrations against Wait were
Of charges refused to defendant, No. 1 is bad in not hypothesizing the existence of conditions without Which he could not have been entitled to invoke the doctrine of self-defense — such as a necessity real or apparent for shooting in order to avert great bodily harm to himself, and his own freedom from fault in bringing on the difficulty.—Miller v. State, 107 Ala. 40; Rogers v. State, 117 Ala. 10; Mitchell v. State, 129 Ala. 23.
Charge 2 gives undue prominence to parts of the evidence over other evidence less favorable to. defendant, especially that tending to show he challenged deceased to come -out of the house and shoot. That charge is also wrong in assuming the conduct and utterances it attributes to the defendant would as a legal conclusion acquit him of blame in respect of provoking the deceased to act as he did, and also in assuming that if under the other conditions predicated the conduct of deceased was such as to impress a reasonable man with a sense of imminent peril, the defendant was justified in shooting, without regard to whether he was himself so impressed.
Charge 15 is argumentative, and in its assertions as to raising a reasonable doubt upon a reasonable doubt it was calculated to mislead the jury.
Affirmed.