Hays v. State, 6 Div. 244.

• Decision Date: 22 December 1932
• Docket Number: 6 Div. 244.
• Parties: HAYS v. STATE.
• Court: Alabama Supreme Court

145 So. 134

225 Ala. 666

HAYS v. STATE.

6 Div. 244.

Supreme Court of Alabama

December 22, 1932

Appeal from Circuit Court, Blount County; W. J. Martin, Judge.

Sam Hays was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

The following requested charges were refused to defendant:

"A. If the deceased made a sudden unprovoked, murderous attack upon defendant, the deceased at the time being armed with a deadly weapon, and in the act of effectuating upon the defendant his murderous purpose, and after considering all the evidence in the case you find this to be true, then I charge you the defendant was under no duty to retreat but had the right to stand his ground and to kill his assailant."

"2. I charge you, gentlemen of the jury, that a citizen may repel force by force in defense of his person against one who manifestly intends or endeavors by violence or surprise to take his life, and if the defendant was entirely free from fault in bringing on the difficulty and did not enter the fight willingly and in good faith believed that he was in imminent peril, the defendant was not obliged to retreat and under such circumstances defendant had the right to take the life of the deceased."

P. A Nash, of Oneonta, and A. A. Griffith, of Cullman, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

ANDERSON C.J.

While the duty to retreat, generally speaking, is an essential element of self-defense, there is a well-recognized exception to the general rule, and that is, when a person is in actual or apparent imminent peril of losing his life, or of serious bodily harm from an assault by the deceased which was unprovoked and manifestly murderous in character, and deceased was then in the act of effectuating his murderous purpose by the use of a deadly weapon, the defendant is under no duty to retreat, but may stand his ground and defend himself. Scruggs v. State, 224 Ala. 328, 140 So. 405, Walker v. State, 220 Ala. 544, 126 So. 848, Beasley v. State, 181 Ala. 28, 61 So. 259, Matthews v. State, 192 Ala. 1, 68 So. 334.

While there was a conflict in the evidence, the defendant's proof showed that at the time the defendant fired the fatal shot the deceased was making an unprovoked effort to shoot him with a pistol, and, this being true, the trial court erred in refusing his requested charge A.

This charge was not covered...