McCain v. State

49 So. 361, 160 Ala. 37, 1909 Ala. LEXIS 48

Opinion

ANDERSON, J.

Whether or not the questions asked, •over the objection of the defendant, were improper, we need not decide; for, if error was committed in permitting these questions, it was error without injury, as the witness answered in the negative, and the facts thereby sought were not otherwise proven.

Charge 1, requested by the defendant, was properly refused. It pretermitted the duty to retreat, if not otherwise bad.

■ Charge 2, requested by the defendant, was properly refused. It pretermits a reasonable and honest belief on the part of the defendant as to the impending peril. “The law requires that such belief must be both reasonably and honestly entertained.” This, of course, does not mean that the supposed facts generating such belief must be real; for they may be appearances only, and yet justify as prompt action as if they were real. — Jackson v. State, 78 Ala. 471; Storey v. State, 71 Ala. 330; Holley v. State, 75 Ala. 14, 19.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.