Brown v. State

83 Ala. 33

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

CLOPTON, J.

— To successfully invoke the plea of self-defense, there must exist a present, pressing necessity to protect the life of the slayer, or his person from great bodily harm, or the circumstances must be such as would create in the mind of a reasonable, prudent man, the honest belief of such necessity, though it may not be real; the slayer must not be the aggressor, nor provoke, nor encourage the rencontre; and he must retire from the combat, if there be a mode of escape, which will not endanger his safety. Mere pursuit, without intent and capacity, or seeming capacity, to take life, or inflict great bodily harm, is not sufficient. Though it is not necessary that the slain should in fact have the means at hand, his conduct and acts must be of a character to impress the mind that such is his purpose, and that he' has the ability to accomplish it. The slayer may act on reasonable appearance. We have uniformly held, that a charge may be properly refused, which omits either of these requisites to a sufficient hypothesis, unless no inference can be reasonably drawn from the evidence that the defendant was at fault in bringing on the difficulty, or that retreat would endanger his safety. — Jordan v. State, 81 Ala. 32; Tesney v. State, 77 Ala. 33; DeArman v. State, 71 Ala. 351; Storey v. State, 71 Ala. 329. The charges requested by defendant are faulty, in that the hypothesis ignores any other reasonable mode of escape.

The use of a deadly weapon, creating the presumption of malice, shifts on the defendant the burden of repelling such presumption, when it is not rebutted or overcome by the evideuce which proves the killing. The onus to prove a present pressing necessity, real or apparent, to take life is on the defendant. But, when he shows this, the prosecution may avoid its effect by proving that the defendant was at fault in bringing on the difficulty, or could have reasonably escaped. The State holds the affirmative of these negative propositions of the plea of self-defense. — Hadley v. State, 55 Ala. 31; DeArman v. State, supra. The first charge given by the court at the instance of the State is substantially in the language of the charge in McDaniel v. State, 76 Ala. 1, which was held to be erroneous, for the reason, that it made a condition of acquittal, that “the evidence must show that the difficulty was not provoked or encouraged by the defendant;” and that such provocation or encouragement not being presumed, and disproof not being required, except in rebuttal of the evidence thereof which the State might introduce, the charge misplaced the burden of proof. In Watson v. State, 82 Ala. 10, it was not intended to overrule this express decision. The opinion in the latter case responded to the only specific objection made to the charge, without considering others which were not presented, and not necessary to be considered, as the judgment was reversed on other grounds.

As the defendant, on the plea of former acquittal being filed, can not be retried for murder, it is unnecessary to consider the charges relating to that offense.

. Reversed and remanded.