
    Keith v. The State.
    
      Indictment for Murdor.
    
    1. Self-defense; burden of proof. — To establish the plea of self-defense, it is enough for the defendant to show that at the time he was either really, or to ordinary appearance, in imminent peril of life or limb, and had no other reasonable means of escape; and whilst he cannot invoke this defense unless he is free from fault in bringing on the difficulty, the onus is not on him to prove this negative.
    2. J teoso nuble apprehension of imminent danger. — In order to justify the taking of human life, the danger need not be real, but must be such in appearance as to create in the mind of a reasonable man, a just apprehension of imminent danger to life or limb.
    Appeal from "Walker Circuit Court.
    Tried before Hon. J. J. Banks.
    Tbe evidence for tbe State tended to show tbat immediately preceding the difficulty wbicb terminated in tbe killing, defendant went into tbe bouse occupied by William Henry Johnson, tbe deceased, and on being asked by deceased, “if be wanted to make a pathway out of bis bouse?” replied tbat be “would make a pathway out of him,” and defendant passing through tbe bouse was followed by deceased a short distance, and on bis approach they jumped together and tbe deceased exclaimed, “be has cut me.” The evidence for defendant tended to show tbat while deceased was following defendant be opened bis knife and put it in bis vest pocket; tbat defendant’s wife and another woman were bolding defendant’s arms and leading him off, and deceased caught defendant around tbe neck from behind and attempted to cut him; tbat defendant struck tbe wrist of deceased whose knife fell to tbe ground and a struggle for tbe possession of tbe knife ensued, defendant obtaining it first, and at tbat time deceased put bis band under bis coat behind, and it was then tbat defendant cut deceased with tbe knife of tbe latter wbicb be bad picked up.
    Tbe defendant requested two charges, which were refused by tbe court. Tbe first is set out in the opinion and tbe second is as follows: 2. “It is not necessary tbat there should be actual danger of death or great bodily barm in order to justify tbe taking of human life, but if tbe jury are satisfied from all tbe evidence in tbe case tbat tbe circumstances attending tbe striking tbe fatal blow were such as to impress Howard Keith, tbe defendant, with a reasonable belief tbat at tbe time of striking tbe blow it was necessary in order to prevent death or great bodily barm to bis person, then tbe jury must acquit tbe defendant, unless they further believe that tbe defendant was not free from fault in bringing-on tbe difficulty.”
    Tbe refusal to give these charges are tbe only errors assigned.
    Coleman & Sowell, for appellant.
    
      W. L. Martin, Attorney-General, for the State.
   COLEMAN, J.

— The defendant was indicted, and tried for murder in the second degree, and convicted of manslaughter in the first degree.

The exceptions reserved, and which are assigned as error, are upon the refusal of the court to instruct the jury as requested in writing by the defendant. The first charge refused reads as follows : “If the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb and could not retreat in safety, or without putting himself at a disadvantage, then the killing would not be wrongful, and it would be the duty of the jury to acquit him, unless the jury further believe from the evidence that the defendant was at fault in bringing on the difficulty.”

The law is very careful of human life, and although a person without fault, may be in great peril, involving imminent danger to life or limb, the duty to retreat and avoid the danger rests upon him, if he can do so with reasonable safety to himself; but where the peril is great, and the danger to life or limb imminent, and the person is without fault, the law does not require him to increase his danger by putting himself at a disadvantage.

The principle involved in this charge has been directly adjudicated and declared to be correct. In the case of McDaniel v. The State, 76 Ala. 5, the court at the request of the State charged the jury that “To make out a case of justifiable self-defense the evidence must show that the difficulty was not provoked or encouraged by the defendant.” Commenting on this charge, the court held it “was faulty.” That it made it a condition of acquittal under the plea of self-defense, that the evidence must show that the difficulty was not provoked or encouraged by the defendant. This was a misplacing of the burden of proof. Enough for the defendant, if he showed that he was really, or to ordinary appearance, in imminent peril of life or limb, from which he had no other reasonable means of escape. . . . The rule is that its existence (fault of the defendant) when shown is an answer to the plea of self-defense, but its existence is not presumed so as.to impose on defendant the burden of its disproof.” •

In Cleveland v. State, 86 Ala. 9, it is said: “The man-slayer must be free from fault in bringing on or provoking the difficulty. The onus of disproving this freedom from fault is not on the defendant. He must be exposed to present, impending peril, that is, he must be presently .exposed to imminent danger of losing his life, or of suffering-grievous bodily harm,, or must reasonably appear to be so, from which he has no other reasonable mode of escape, without apparently increasing the imminence of his peril.” The charge requested is in accord with the rule declared in the foregoing cases, and should have been given.

The second charge requested was clearly the law, as decided many times by this court. The danger need not be real, but it is sufficient if the apparent danger is such as to create in the mind of a reasonable man a just apprehension of imminent danger to life or limb. 3 Brick. Dig., p. 219, 220; 86 Ala. supra; 76 Ala. supra.

There was evidence upon which these charges could be predicated, and consequently they were not abstract.

Beversed and remanded.  