Waller v. State

89 Ala. 79

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

CLOPTON, J.

It is not contended that the charge given by the court is legally incorrect. • The only objections Urged are, that there is no evidence on which to base the charge, and that it is involved. We have repeatedly held, that giving an abstract charge, or one too general, obscure or ambiguous, if legally correct, will not reverse the judgment, unless it appears the jury were thereby misled. But we do not regard the charge as obnoxious to the objections urged. The defendant himself testified, that he was approaching the house in which deceased was, and when about sixty feet from the door he heard deceased cursing him; that cursing deceased in reply, he continued walking toward the house, and when about thirty feet distant, deceased came to the door with his gun and fired, defendant himself firing immediately thereafter- — the firing being nearly simultaneous. The charge is based substantially on these facts, with the additional facts, that the difficulty occurred in the night-time, as to which there is no dispute, and that deceased did not know that defendant was approaching or near the house; there being no evidence that deceased knew, or had reason to suppose, that defendant was going to the house, until he recognized his voice. The charge is not abstract.

The charges requested by defendant were properly refused. They invoke the right of self-defense. It is reasonably apparent that defendant could have avoided the killing, by retiring, or going away, when he first heard deceased cursing him; instead of doing so, he continued advancing towards the house, cursing deceased. Each of the charges ignores the inquiry, whether the defendant was free from fault- — whether he said or did anything for the purpose of provoking a difficulty, or was disregardful of the consequence of his wrongful words or acts, or whether he could have avoided the difficulty by declining the combat. The inquiry as to the necessity of shooting to prevent great bodily harm, and as to a reasonable mode of escape without apparently increasing his own danger, is limited to the period of time when deceased came to the door with his gun, after defendant had cursed him, and while he was approaching the house. Defendant can not contribute to bringing on the difficulty, and, voluntarily and unnecessarily placing himself in a situation' of danger, excuse killing his adversary on the right of self-defense.—Tesney v. State, 77 Ala. 33; DeArman v. State, 71 Ala. 351.

Affirmed.