
    Langston v. The State.
    
      Manslaughter.
    
    (Decided June 12, 1913.
    63 South. 38.)
    1. Indictment anil Information; Description of Decedent; Variance. —I'n(tei‘¡ section 7134. Code 3JHÍ7.' an iudictiueut is sufficient; and .there is.no variance, if it..describes the person killed b.v a name by which he was known' and called, and by which defendant knew hiin, though it' was not'his true name. .
    2. Homicide; Seif-Iicfciis'e; D.uty to Retreat. — A. charge-basing an acquittal as a part of its’ predicate bn a finding that .the killing was dore under such circumstances as to jusfLy a reasonable man in believing, that he could not..have.retreated without increasing his peril, is "iiot the same as a requested charge to 'which defendant was .entitled-, .omitting such finding-iron) its predicate, so as to justify its reiusal on the theory .of .being covered by written charges given.
    3. Same. — In regard to tlip. issue of self-defense, one’s residence, or the curtilage is not' a place from which' he is -under a duty to retreat.
    Appeal from Morgan Circuit Court.
    Heard before Hon. D. W. Speake.
    Bob Langston was convicted of manslaughter in the first degree, and appeals.
    , Reversed and remanded.
    Defendant wás indicted and tried for killing one Wiley.'Hill- It appears from the evidence that deceased and bis wife weBt over to the home of defendant near sundown on Saturday evening, and spent the night there, and that on Sunday morning, when defendant’s wife and deceased’s wife and the children had gone down into the field to look at a ditch, which had been cut, the lolling took place between the house and kitchen of defendant; no one being present or witnessing tbe killing. The defendant’s version was that, previous to the time of the killing and before they moved to. the present place, the deceased had assaulted his wife, and that on the occasion referred to, after his wife and deceased’s wife left, defendant said to deceased: “I wish you would take your things and get away from here, and never come back here any more.” At that time deceased was cleaning his finger nails with a knife, and began cursing and abusing defendant and made a lunge at him with the knife, and defendant ran to his room to grab his gun, when deceased stepped off the porch, and when he went to look to see where deceased had gone, he found deceased around the corner of the house with a heavy stick in his hand, who immediately started towards defendant with the stick raised, whereupon defendant fired.
    Given charge 25 was as follows: “It is not necessary under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he killed Hill, or that retreat would have reasonably increased his peril, in order for him to be justified in shooting Hill. He had the right to act on the appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of Hill in the light of any threat that the evidence proves Hill to have made against defendant. If the circumstances attending the killing were such to justify a reasonable man in the belief that he was in danger of great bodily barm or death, and that be could not have retreated without addirig to his peril, and he honestly believed such to he the case, then he had a right to shoot Hill in his own defense, although, as a matter of fact, he was not in actual danger, and retreat would not have endangered his personal safety; and if the jury beTeve that defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the state, and if it is not shown, the jury should acquit.”
    Charge 11 is exactly similar to charge 25, except that all reference to the doctrine of retreat is omitted, in both the first and second clauses thereof.
    Wert & Lynne, and Callahan & Harris, for appellant.
    The oral charge of the court excepted to was not based on the evidence, but based upon a predicate not shown in the evidence denying defendant the right of self defense. — 1 Mayf. 807. The question of the identity of deceased presented itself in several ways, and is sufficiently presented by the written charge requested as to variance, and the court erred in refusing it.— Crawford v. State, 112 Ala. 1; Bussell v. State, 71 Ala. 348; Grattan v. State, 71 Ala. 344; Nutt v. State, 63 Ala. 180; Page v. State, 61 Ala. 18; Morningstar v. State, 52 Ala. 405; 1 Chitty Crim. Law secs. 211-213; 75 Mass. 129. Charge 11 was not covered by charge 25 'in such a sense as to justify its refusal on that ground, and as it stated a correct proposition of law, it should have been given. — McCutchin v. State, 59 South. 714. The difficulty was in the dwelling of defendant, and he was not required to retreat. — Christian v. State, 96 Ala. 92.
    
      R. C. BrIckbll, Attorney General, and W. L. Martin, Assistant-Attorney General, for the: State.
    The evidence Sought to be elicited regarding, the details of the .difficulty between the deceased and .‘the defendant’s wife ¡was not proper. The defendant’s only'.plea was “not :guilty.”?- Such evidence ¡therefore could be Trio more than itlie particulars of a difficulty which.-could not Láve been admitted event-if -it had been between, the:defendant and deceased. — Martin'v. .¡State, 7,7; Ala; -::1; ■ AloAnally ,;State., .74 Ala. 9 -Gordon v. '¡State, 140 Ala.'29.; ’Sanford v. State, 2 Ala. App. 81;:,89: ■ - The.'exceptions relative to .the'defendant’s- conduct- after; thej difficulty do..-not dis-.elose.-,error. The evidence was self-serving; — Stewart v. State, 63 Ala. l%^.-,:Eendexsbn'i:v:-.State, ¡70?’Ala..:23',* Billingslea v. State, 68 Ala. 486; Shelton v. State, 73 Aid. tone's 'v. Slate', 103 Ala.’ 1; Williams v-.'- State, ■105 Ala. 96; Chilton v\ State, 105 Ala. 98; Ferguson c. ¡State,- 134- Ala. 63;■ The alleged error‘regarding"-the name of-the deceased was not taken ■ advantage of by plea in abatement before arraignment and'plea of not guilty. — M/Lt v.State, 54 Ala. 155; Weils v: State, 88 Ala. 239!; Welsh v. Stale,' 96- Ala. '92, "96; ■Jackson v. State-; 102' Ala. 167, 170.- ' '
   WALKER, P. J.:

The. indictment' charged that the defendant “.unlawfully, and with malice - aforethought killed Wiley -Hill by shooting hita with, á gun,” ' etc. .'After-the state had introduced evidence tending to Support -the charge made in the indictment the defendant introduced testimony which tended to' prove that' the name of the person who was killed was: Wiley -Sill Goulsby. He excepted to the action of the court in permitting the introduction by the state'of testimony tending to prove that the deceased was known and called by the name of Wiley Hill, moved to exclude the evidence offered .by thé' state on the ground that there was a variance' between the allegation of the indictment and the evidence offered as to the name of the person who was killed, and requested written charges to the effect that, if the family . or surname: of the person who was killed was Goulsby and not Hill, then the jury should find' the defendant hot guilty. We are not of opinion that the court was in error in its rulings in this cohnec1 tion. It is not doubted that a.material averment of an indictment for homicide is the one which is descriptive of the person charged to have been killed. The aver: ment on this point must be such as to identify that person.. As to this fact, as with regard to other facts constituting the offense, the requirement of the statute (Code, § 7134) is met by averring it “in such a manner as to enable a person of common understanding to know what is intended.” “An indictment for murder must be so certain as to the party against whom the offense was committed that the prisoner will know and understand who it is he is charged with having killed.” — Page v. State, 61 Ala. 16. It cannot be said, as a matter of law, that this is always best accomplished by stating such person’s true name. He may be as well, if not better, identified by a name by which he was generally known and called, though that was not his true name. The truth of' this statement is illustrated by the testimony in this case. The witnesses who testified as to the facts of the killing spoke of the deceased as Wiley Hill. The deceased’s widow testified that she never knew him by any other name. . It may be inferred from the testimony of the defendant himself that the deceased was known to him only by that name, and not at all by. the name of Goulsby, though: it turned out that the latter was his real surname.: Throughout the defendant’s testimony he. :spoke.: of: the deceased as Wiléy Hill or Mr. Hill. If the deceased was generally known and called by that name, and was known to the defendant by that name, the indictment, in averring that Wiley Hill was the person who was killed, enabled the defendant to know and understand who it was he was charged with having killed. The charge in the indictment being that the defendant “unlawfully and with malice aforethought killed Wiley Hill by shooting him with a gun,"’ and there being evidence in the case tending to prove that the person who was killed was known and called by the name by which he was called in the indictment, and that the defendant knew him by that name, it cannot be said that there was an absence of evidence to support the averment of the indictment, which was descriptive of the person who was charged to have been killed, or that as to this feature of the charge as made there v as a variance between the allegation and the proof. The court would not have been justified in deciding that the averment in the indictment of the name of the person charged to have been killed imported anything more than that that was a name which identified the person referred to, or that that averment required for its support evidence to the etect that the alleged name was the true name of the deceased.

A statement indorsed by the presiding judge on written charge 11, requested by the defendant, shows that it was refused upon the ground that it was substantially the same as written charge 25, given at the request of the defendant. The court was mistaken in treating the two charges as substantially the same. The one which was given stated, as a part of its predicate for a verdict of acquittal, a finding by the jury that the killing was under such circumstances as to justify a reasonable man in believing that he could not have retreated without increasing his peril, while a finding to that effect was omitted from the predicate for such a verdict which was stated in the charge which was refused. The court, by giving the one charge and refusing the other, in effect ruled that a statement of the defendant’s observance of the duty to retreat was an essential part of a predicate for a verdict of acquittal. A ruling to this effect was not justifiable under the evidence in the case. That evidence was without conflict to the effect that the defendant fired the fatal shot when he was in his own residence or within the curtilage thereof. That was a place from wlr'cli he was not under a duty to retreat. This being true, a statement of his performance of that duty did not constitute an essential part of a predicate for a verdict of acquittal. — Harris v. State, 96 Ala. 24, 11 South. 255. Refused charge 11, except in so far as it fails to hypothesize the defendant’s observance of the duty of retreating to avoid taking the life of another, is one which it has several times been held should be given when requested. — McCutcheon v. State, 5 Ala. App. 96, 59 South. 714; Bluitt v. State, 161 Ala. 14, 49 South. 854; Bluett v. State, 151 Ala. 41, 44 South. 84. Following these rulings, it must be held that in such a case as the present one it is error to refuse a charge which, with the exception stated, is of the same import. The record does not show that this error was cured by the same or substantially the same proposition which was asserted in the refused charge, being covered by other instructions given at the request of the defendant. ’Hie result is that, because of the error committed in refusing to give the charge mentioned, the judgment must be reversed.

Reversed and remanded.  