
    Holmes v. The State.
    
      Indictment for Murder.
    
    1. Evidence of had feeling.—On a trial under an indictment for murder it is competent for'the State to prove that “bad feeling” existed between the defendant and the deceased prior to the difficulty which resulted in the homicide.
    2. Same; opinion.-—Where on a trial for murder it appears from the testimony that the deceased and defendants brother were fighting together and that deceased had a hoe raised to strike defendant’s brother, when the defendant struck him with an axe,from the effects of which he died, and the hoe has been fully described to the jury, it is not competent for the defendant to ask a witness “whether or not the hoe that Henry Mann (the deceased) had was of such weight and strength as that he could have killed a m m within striking distance ”
    3. Charge ignoring opportunity for escape.—On a trial for murder, a charge, “if the jury believe from the evidence that defendant struck the fatal blow when there was a present, pressing necessity to strike in order to save the life of his brother, or to save his brother from great bodily harm, then the law casts upon the State the burden of showing, beyond a reasonable doubt, that the defendant’s brother was at fault in bringing on the difficulty,” was properly refused, inasmuch as it ignores the question whether or not there was a reasonable way of escape to defendant by which the necessity to strike might have been avoided.
    4. Same; misplacing burden of proof.—On a trial for murder a charge that “If the defendant struck the fatal blow when there was a present, pressing necessity to strike in order to save the life of his brother or to save his brother from great bodily harm, then the burden is upon the State to show that defendant’s brother could have escaped from the difficulty without increasing the peril, and unless the jury believe from the evidence beyond a reasonable doubt that defendant’s brother could have reasonably escaped from the difficulty without increasing his peril, then the defendant had the right to strike the fatal blow whether the necessity was real or only reasonably apparent to the defendant; if he struck the fatal blow under these circumstances and for the sole purpose of saving his brother’s life or to save his brother from great bodily harm and his brother was without fault in bringing on the difficulty then the jury must find the defendant not guilty” is properly refused, inasmuch as it places on the State the burden of proving affirmatively that the defendant could have escaped from the difficulty without increasing his peril— (Following Gibson v. The State, 89 Ala. 121, which repudiates, on this point, jBrown v. The State, 83 Ala. 33).
    5. Same; burden of proof. as to fault of defendant in bringing on the difficulty.—On a trial for murder, -when a case of self-defense is made out by the defendant, the burden rests on the State to prove affirmatively that the defendant was in fault in bringing on the difficulty, and if it appears that he was not free from fault in provoking or bringing on the difficulty the law will not shield him from the consequences of the homicide, the result of his own fault, although at the time of the killing there was a pressing necessity to strike to save his own life, and there was no mode of escape.
    6. Argumentative and misleading charge.—It is not error for the trial court to refuse to give charges that are argumentative and misleading.
    Appeal from tbe Circuit Court of Clay.
    Tried before tbe Hon. N. L. Denson.
    Tbe appellant was indicted and tried for tbe murder of one Henry Mann, and was convicted of murder in tbe second degree, and sentenced to tbe penitentiary for ten years.
    Tbe evidence as to tbe particulars of tbe difficulty, in wbicb tbe deceased was killed, and bow it arose, was in conflict.
    Tbe evidence for tbe 'State tended to sbow tbat tbe defendant and bis brother, Tbomas Holmes, and tbe deceased and bis three sons were coming from their work on tbe road; tbat Jim Mann, a son of tbe deceased, and Tbomas Holmes, a brother of tbe defendant, got into a quarrel; tbat Tbomas Holmes was charged with bringing on this difficulty, and tbat after tbe passage of several quarrelsome words, Tbomas Holmes struck at Jim Mann with bis boe; tbat Henry Mann (tbe deceased) ran up and threw bis boe under tbe boe of Tbomas Holmes, catching the blow as it came down, and that while standing there with their boes locked tbe defendant ran back about 10 or 15 feet and struck Henry Mann with tbe blade of an axe, from which blow be died.
    Tbe testimony for tbe defendant tended to show tbat Jim Mann was at fault in bringing on tbe difficulty, and tbat while Tbomas Holmes and Jim Mann were standing with their boes locked, tbe deceased (Henry Mann) ran up and struck Tbomas Holmes in tbe bead with bis weeding boe, knocking him to bis knees, and tbat as be raised the boe about to strike him again, tbe defendant ran back to where they were fighting and struck Henry Mann with an axe.
    
      During tbe examination of one of tbe witnesses for tbe State tbe solicitor asked bim tbe following question: “Do you know of any bad feeling between defendant and deceased prior to tbe difficulty?” Tbe defendant objected to tbis question, and duly excepted to tbe court’s overruling bis objection. Upon tbe witness answering “I know there was bad feeling between tbe defendant and deceased prior to tbe difficulty,” tbe defendant moved to exclude tbis answer, and bis motion being overruled by tbe court, duly excepted.
    During tbe examination of another witness, and after be bad described tbe boe which tbe deceased bad, as “an ordinary weeding boe with a pine handle five or six feet long, fastened in tbe eye of tbe boe,” tbe defendant’s counsel asked tbe witness to state “whether or not said boe that Henry Mann bad was of such weight and strength as that be could have killed a man within striking distance?” Tbe State objected to tbis question, and tbe objection being sustained by tbe court, tbe defendant duly excepted.
    Upon tbe introduction of all tbe evidence tbe defendant requested tbe court to give tbe following written charges, and separately excepted to tbe court’s refusal to give each of them as asked: (A) “If the jury believe from tbe evidence that defendant struck tbe fatal blow when there was a present, pressing necessity to strike in order to save the life of bis brother, or to save bis brother from great bodily barm, then tbe law casts upon tbe State tbe burden of showing beyond reasonable doubt that defendant’s brother was at fault in bringing on tbe difficulty.” (B) “If tbe defendant struck tbe fatal blow when there was a present, pressing necessity to strike in order to save tbe life of bis brother, or to save His brother from great bodily barm, then tbe burden is upon tbe State to show that defendant’s brother could have escaped from tbe difficulty without increasing his peril, and unless tbe jury believe from tbe evidence beyond a reasonable doubt that defendant’s brother could have reasonably escaped from tbe difficulty without increasing bis peril, then defendant bad tbe right to strike tbe fatal blow whether tbe necessity was real or only reasonably apparent to tbe defendant; if be struck tbe fatal blow under these circumstances, and for tbe sole purpose of saving bis brother’s life, or to save bis brother from great bodily barm, and bis brother was without fault in bringing on tbe difficulty, then tbe jury must find the defendant not guilty.” (Cj “The burden is upon tbe State in tbis case to prove beyond a reasonable doubt that tbe defendant’s brother was in fault in bringing on tbe difficulty, and that be could have reasonably escaped from the difficulty without increasing his peril, if the jury believe from the evidence that when defendant struck the fatal blow there was a present, pressing, imperious necessity for defendant to strike in order to save the life of his brother, or to save his brother from great bodily harm, and that defendant struck the fatal blow for the sole purpose of saving his brother’s life, or to save his brother from great bodüy harm. And it matters not whether such necessity was real or reasonably apparent, in either event, if the defendant struck the fatal blow for the sole purpose of saving his brother’s life, or to save his brother from great bodily harm, when such necessity as stated above existed, or was reasonably apparent, and the State has not proven beyond a reasonable doubt that defendant’s brother was at fault in bringing on the difficulty, or that he could have reasonably escaped from the difficulty without increasing his peril, then the jury must find the defendant not guilty.” (D) “The court charges the jury that if Jim Mann brought on the difficulty with Thomas Holmes, and called Thomas Holmes a damn lie and said his (Thos.') mother had told him a damn lie, and that then Thomas struck Jim Mann, that under the law Thomas was without fault in bringing on the difficulty, if that is all he did to provoke the difficulty, and authorized and justified Thomas Holmes to strike Jim Mann.” (E) “The court charges the jury that Major House is not on-trial for not staying with Henry Mann after he was stricken, and that they must not, in this case, punish this defendant simply because said House went home to his sick family instead of remaining with said Mann after he was stricken.”
    B. B. Kelly, for the appellant.
    Wm. L. Martin, Attorney-General for the State.
   COLEMAN, J.

The defendant was convicted of murder in the second degree. The first exception was to the action of the court, overruling an objection to the question, “Do you know of any bad feeling between defendant and deceased prior to the difficulty ?” It was competent to prove bad feeling as tending to show malice. “Bad feeling” is a fact to which a witness may testify. It stands in the category of health, sickness, good humor, anger, jest. Polk v. State, 62 Ala. 237. The next exception was to the ruling of the court, in sustaining an objection to the question “State whether or not the hoe that Henry Mann had was of such weight and strength, as that he could have killed a man within striking distance ?” The hoe and handle had been described to the jury. The fact attempted to be proven was within the knowledge of the jury, as much so as that of the witness. The witness was not an expert in any sense, and his opinion was worth no more than that of any other man. The objection was properly sustained. The next exceptions are to the refusal of the court to give certain instructions, which were requested by the defendant. Charge A. refused, ignores the question as to whether there was, or not, a reasonable way of escape to defendant, by which the necessity to strike might have been avoided, and charge B. places the burden upon the State to prove affirmatively, that defendant could nave escaped from the dificulty without increasing his peril. We are referred to the case of Brown v. The State, 83 Ala. 33. The doctrine declared in Brown’s case upon this point was repudiated in the subsequent case of Gibson v. The State, 89 Ala. 121. There can be no necessity to kill, if there is a way of retreat open to the slayer available by the exercise of reasonable prudence. Cleveland v. The State, 86 Ala. 2; Lewis v. The State, 88 Ala. 11; Keith v. The State, 97 Ala. 32.

These principles sustain the ruling of the court as to charges A. B. C. and D. and there was no error in refusing them. It is well settled that the burden is not on the defendant, to prove affirmatively that he was free from fault in bringing on the difficulty. This burden rests upon the State, when a case of self-defense is made out by the defendant ; and if it appears that defendant was not free from fault in bringing on or provoking the difficulty, the law will not shield him from the consequences of committing a homicide, the result of his own fault, although at the time of the killing, there was a pressing necessity to strike, to save his own life, and there was no mode of escape. Authorities supra and cases cited. Webb’s case ante p. 47.

Charge “E” is argumentative and misleading, and was properly overruled. There is no error in the record and the judgment must be affirmed.

Affirmed.  