
    Harold v. The State.
    
      Murder.
    
    (Decided January 4, 1915.
    67 South. 761.)
    1. Homicide; Self-Defense. — To justify a killing, defendant must not only have been free from fault in bringing on the difficulty, but at the time he struck the fatal blow he must have been in imminent peril of losing his own life, or suffering great bodily harm, and the conditions must have been such that he could not have retreated without increasing his danger.
    2. Same. — A defendant asserting the doctrine of self-defense has the burden of showing his inability to retreat, and in the absence of such a showing, charges asserting that he was under no obligation to flee, and had the legal right to stand his ground and kill his adversary, should have been refused.
    3. Same. — An attack with brass knucks made by an intoxicated man cannot be said to be so manifestly felonious as warranting his killing without an attempt on defendant’s part to retreat.
    4. Same. — Unless the circumstances were such that a defendant entertained a reasonable belief that it was necessary to kill the deceased to save his own life, defendant should have retreated on being attacked ; an irrational belief, however honest, will not suffice.
    5. Swine. — Where there was no evidence which would have justified the jury in finding that a defendant entertained a reasonabie belief that he could not have retreated without increasing his peril, a charge as to defendant’s rights under those circumstances is abstract and properly refused.
    6. Swine. — A charge that if the jury could not say whether defeud-ant acted upon a reasonable belief that it was necessary to take the life of deceased to save himself, or that he cut before such “peding” necessity arose, is properly refused as being unintelligible.
    7. Same; Degrees. — Malice must be present to constitute murder in the second degree, but is absent in manslaughter in the first degree, and a charge disregarding that essential is an incorrect statement of the law .
    8. Appeal and Error; Record; Presumptions. — The court on appeal will presume that the record shows instructions as originally given.
    Appeal from Escambia Circuit Court.
    Heard before Hon. A. E. Gamble.
    Charlie Harold, alias, was convicted of murder in the second degree, and he appeals.
    Affirmed.
    
      The evidence sufficiently appears from the opinion of the court. The following charges were refused defendant:
    (16) If the jury believe from the evidence that defendant was free from fault in bringing on the difficulty in which deceased lost his life, and that deceased made an attack upon him with a deadly weapon with murderous intent, defendant was under no obligation to flee, but had the legal right to stand his ground, and if need be kill his adversary.
    (19) If the jury believe from the evidence that defendant was free from fault in bringing on the difficulty in which defendant lost his life, and reasonably apprehended death or great bodily harm to himself unless he killed deceased, the killing was justifiable.
    (20) The court charges the jury that if they believe from the evidence that defendant was without fault in bringing on the difficulty, and there existed at the time in the mind of defendant a reasonable belief, honestly entertained, that there was either a real or apparent, imperious, and impending necessity to cut in order to save himself from great bodily harm, and that from the reasonable belief, honestly entertained, that deceased had dangerous weapons, retreat would only increase his danger, and defendant from such belief cut and killed deceased, then the jury must not convict defendant.
    (39) I charge you that if, after looking at all the evidence in this case, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt whether defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of deceased to save himself from great bodily harm, or death, or that he cut before such a peding necessity arose, then this is such a doubt as would entitle defendant to an acquittal, and you should so find.
    
      (41)To constitute murder in the.second degree, defendant must inflict an act of violence which. produces death, with intent to kill decedent, or do an act of violence which ordinarily in the usual course of events produces death or does great bodily harm. To constitute manslaughter in the first degree, defendant must have an intention to kill or inflict an act of violence which ordinarily or in the usual course of things produces death or great bodily harm.
    Leigi-i & Chamberlain and Ed. Leigi-i McMillan, for appellant.
    Charges 16 and 19 should have been given. —Beasley v. State:, 181 Ala. 28; Coolc v. State, 5 Ala. App. 112. Charge 20 should have been given. — McGain v. State, 160 Ala. 37. Charge 41 should have been given. —Fowler v. State, 161 Ala. 1.
    R. C. Brickell, Attorney Beneral and T. H. Seay, Assistant Attorney General, for the State.
    Where a defendant goes upon the stand in his own behalf, he may be cross-examined as to his motive or intent in committing the crime. — Linnehan v. State, 120 Ala. 293. Counsel discuss the charges refused, with the insistence that the court’s action was proper, but they cite no further authority.
   THOMAS, J.

The only insistence of appellant’s counsel in this case is that the trial court erred in refusing written charges 16, 19, 20, 39, and 41 requested by appellant, in disposing of which insistence it is necessary that we review briefly the evidence.

Ignoring the case as made by the evidence for the state, and taking as true the defendant’s own version, it appears that, shortly before the difficulty, deceased was at a livery stable in the town of Brewton, where he bad some whisky, of which he had been drinking when defendant came np and upon invitation of deceased also' took a drink; that while there a third party present, who was a cripple, called defendant a d-liar about a matter incidentally arising and immaterial here, whereupon defendant knocked this party down; that deceased, upon remarking that defendant should not impose on a cripple in his presence, struck defendant with his first, whereupon defendant then knocked deceased down also; that immediately after getting np off of deceased, defendant went to a pump out in the street to wash his face and hands, when deceased followed behind him; and that, as defendant was bénding over washing at the pump, the deceased hit him a glancing lick on the head from behind with a pair of brass knncks that were on his hand; bnt that, missing his full aim, he fell over defendant onto the ground, where defendant seized him, and, after holding him there for a while, got up to go home, telling deceased to leave him alone; that deceased then got np and followed, endeavoring all the while'with-a pair of brass knucks on his hand to hit defendant, who was backing off, wheréupon defendant took out his knife and stabbed the deceased to- death. In the language of defendant: I cut him when he struck me over the eye. When I cut him, he was coming towards me, and had a pair of knucks on his hand. He kept moving towards me, trying to hit me. I thihk I made three passes at him. It was all over in a minute, I reckon.”

This happened out in the open street, where, so far as appears, there was nothing to prevent the defendant from retreating and thereby avoiding the blows aimed at him by deceased, who-, it seems, was partly intoxicated, • and consequently not only less able to use effectively the knucks, but less able to pursue the defendant if the lat-; ter had retreated. For the law to justify defendant in killing deceased, the defendant must not only have been free from fault in bringing on the difficulty, but he must, at the time he struck the fatal blow,, have been in imminent peril of losing his own life or of suffering great bodily harm at the hands of his assailant, and the conditions surrounding him must have .been such that he could not have retreated without increasing his danger, or such as would have appeared so to a reasonable man circumstanced as was the defendant. — 1 Mayf. Dig. 800 et seq.

The burden of showing his peril and his inability to retreat rested upon defendant, and even if we accept as true his own version, it does not appear that the character and manner of the assault made upon him by deceased, nor that the kind of weapon used in that assault, nor that the place and circumstances of that assault, were such as to relieve him of the duty of retreating or to justify him in taking the life of his assailant; consequently, the court did not err in refusing charges 16 and 19, which contained no hypothesis with reference to the matter of retreat. — 1 Mayf. Dig. 800 et seq.

We find nothing to conflict with these views, in the cases of Beasley v. State, 181 Ala. 28, 61 South. 259, Cook v. State, 5 Ala. App. 11, 59 South. 519, and Storey v. State, 71 Ala. 337, cited us by appellant, which assert the doctrine that: “When the assault is manifestly felonious in its purpose and forcible in its nature, as in murder, rape, robbery, burglary, and the like, * * * the party attacked is under no obligation to retreat.”

This is but a reiteration of the well-known common-law principle, as declared in Russell on Crimes, that: “A man may repel force with force in defense of his person, habitation, or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony upon either. In these cases he is not obliged to retreat, * * * [but] the intent to murder, ravish, or commit other felonies attended with force or surprise, should be apparent and not be left in doubt; so that if A. make an attack upon B., it must plainly appear by the circumstances of the case (as the manner of the assault, the weapon, etc.) that the life of B. is in imminent danger; otherwise, his killing the assailant will not be justifiable self-defense.” — Russell on Crimes, vol. 3 (International Ed. 1896), pp. 213, 214.

In the Beasley Case, supra, which is the only one of the cases mentioned as cited us by appellant where the doctrine was applied (the other two — the Cook and Storey Cases — having merely incidentally declared it), the facts were entirely different.from those here. There the assault upon defendant was made with a gun, which is a known deadly weapon, a discharge from which could have effectively reached the the defendant even if he had retreated. Therefore, under the circumstances of that case, the court held in effect that the assault upon defendant, if the jury believed the evidence, was manifestly felonious, its character, judged from the weapon presented and the manner of its attempted use by deceased, clearly ' disclosing an intent on his part to murder defendant; since, as a matter of law, it is to be presumed that every man intends the known usual and natural consequences of his acts, and since.it is known that the usual and natural consequences of shooting a person with a gun are to kill him, and that if he retreats in the open his danger is increased. This cannot be said of an assault upon a person in the streets with a pair of knucks. Hence we cannot say as a matter of law that the assault made upon the defendant in this case, even when looking alone to his own evidence, was “manifestly felonious.” Hence charges 16 and 19 were abstract as applied to the facts of this case.

To relieve tbe duty to retreat, tbe defendant must, as said, not only bave been free from fault in bringing on tbe difficulty, but tbe assault upon bim by deceased must bave been coupled with an intent and capacity, or seem-' ing capacity, to take life or to inflict some great bodily barm. It must appear that tbe assailant, by bis conduct and acts, impressed tbe mind of tbe defendant that it was tbe deceased’s purpose to bill at tbe time that tbe fatal blow was struck in defense. Tbe deceased must not only bave bad tbe means at band for effecting a deadly purpose, but it must, bave appeared from some act or demonstration of bis that it was bis intention, at tbe time of tbe killing, to carry out bis purpose, thereby inducing a reasonable belief on tbe part of tbe defendant that it was necessary to deprive deceased of bis life in order to save bis own.—Lewis v. State, 51 Ala. 1.

It must bave been a reasonable belief, honestly entertained, and begotten by attendant facts and circumstances of such a character as to justify such a belief in tbe mind of a reasonable man. An irrational belief, one not authorized by tbe facts and circumstances then attending defendant, however honestly entertained, will not answer. — 1 Mayf. Dig. 802, § 21.

Hence charge 20 was properly-refused, if for no other-reason, because it was abstract, in that there was nothing in tbe evidence which would bave justified tbe jury in finding that defendant entertained a reasonable belief that be could not bave retreated without increas-. ing bis peril, even granting that bis. peril was shown to bave been such as would bave justified tbe killing in tbe event there was no mode of escape open to bim by retreat. The defendant, failing, as be did, to show facts and .circumstances sufficient to furnish a foundation for a belief in the mind of a reasonable man, environed as he was, that be could not retreat, is not in position to complain of the refusal of the charge. We are not to be understood, however, as intending to hold that the charge even abstractly asserts a correct proposition of law. While it probably meets every criticism aimed at a similar charge in McCain v. State, 160 Ala. 38, 49 South. 361, yet we are- of opinion that the charge is faulty for other reasons than those pointed out in said case. The necessity which will justify the taking of human life, it is true, need not be real, provided it is apparently so to the mind of a reasonable man; but the slayer must honestly and reasonably believe it to bé real, and not merely that it appears so. His belief, although reasonable and although honest, that such necessity is apparent, will not therefore excuse him; yet the charge in effect asserts that if he reasonably and honestly believes that it is either real or apparent it will excuse him.

One clause in charge 39, even if the charge is not-otherwise faulty as applied to the facts of this case (see Charlie Langham v. State, infra 68 South., 504), is sufficient for Avaht of sense in such clause to have justified the court.in refusing the charge.as; a whole.. This clause in the transcript of the1 charge reads,’“or that he [defend-ant] cut before,such a pedmg necessity.arose.” Whether this .word “pedmg” appeared in the original- charge, or AAdiether by typographical error in copying the charge the clerk substituted that word, for “impending” or. some other Avord, Ave do not know. Our-solé guide-is the record, and we must presume for purposes here that the original’ AvaS as is Avliat purports- to be its copy in the transcript.' . . . . ■ .

• Charge 41- Avas properly refused, because the definition of “murder in the second degree” and of “manslaughter in the first degree,” as given in the charge, is the saíne. While such definition is correct, as far as ii goes, yet it fails in completeness and fails to distinguish between these two degrees of homicide, and would consequently liave left the impression on the minds of the jury that there is no difference between them, and that murder in the second degree and manslaughter in the first degree were one and the same thing in law; whereas, in fact murder is characterized by malice, which the charge ignores, and manslaughter by an absence of malice, which the charge likewise ignores.

We have discussed the only errors insisted upon, and, as we find none in the record, the judgment of conviction and sentence of 10 years is affirmed.

Affirmed.  