Opinion
1 Div. 561.
December 16, 1975. Rehearing Denied January 20, 1976.
Appeal from the Circuit Court, Mobile County, Ferrill D. McRae, J.
Thomas M. Haas, Mobile, for appellant.
When the defendant introduces evidence of self-defense, the burden is upon the State to prove beyond a reasonable doubt that the killing was not in self-defense. Lester v. State, 270 Ala. 631, 121 So.2d 110; Robertson v. State, 183 Ala. 43, 62 So. 837; Cooper v. State, 294 Ala. 755, 317 So.2d 531.
William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
The State does not have the burden of proving that the killing was not in self-defense. Where the Court found that if a Defendant pleads not guilty to a charge of murder in the first degree, the burden is on the State to prove beyond a reasonable doubt that the Defendant is guilty of some degree of unlawful homicide. McMichen v. State, 34 Ala. App. 300, 39 So.2d 47 (1949). The burden of proof is unvaryingly on the State to convince the Jury beyond a reasonable doubt, but the State is not required to disprove excuses or justifications. Duck v. State, 38 Ala. App. 652, 92 So.2d 55 (1957). A charge which requires that the State to prove beyond a reasonable doubt that accused without excuse and unlawfully killed decedent was properly refused, because it placed on the State the burden of proof on the issues of self-defense relied on by the accused. Prater v. State, 193 Ala. 40, 69 So. 529 (1915).
Wilkins, convicted of voluntary manslaughter appeals from a judgment based on a jury verdict which also fixed punishment at four years imprisonment.
Code 1940, T. 14, §§ 320 and 322.
Wilkins shot John Roush with a pistol. The wound was fatal. The place was in a private club which had, past the bar, a pool table. Roush was annoying two poolsharks. Wilkins, who was a quondam, ad hoc or part time bouncer, remonstrated with Roush and in the course of the ensuing confrontation shot him once. The shot caused his death.
See Tarrant v. City of Birmingham, 39 Ala. App. 55, 93 So.2d 925; Gulas v. City of Birmingham, 39 Ala. App. 86, 94 So.2d 767 and Hare v. City of Birmingham, 39 Ala. App. 89, 94 So.2d 769.
Self defense was raised. One defense witness saw a large knife-like "industrial tool" lying beside the deceased.
The trial judge charged on the law of self defense. No exception was taken to his oral instruction. Hence, it became, along with the given written charges, the law of the case. Code 1940, T. 7, § 273. See the footnote to concurring opinion of Rehnquist, J., in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
An omission from (or gap in) the oral charge and the given written charges is reviewable on appeal only in the light of and from the text of the written charges submitted to the judge and refused by him. § 273, supra. We do not ex mero motu review instructions to the jury. Smith v. State, 53 Ala. App. 657, 303 So.2d 157(5).
Wilkins submitted the following charge (No. 7) which reads:
"The court charges the Jury, that where the defendant introduces evidence of self defense to justify the killing of deceased, the burden is upon the State to prove beyond a reasonable doubt that the killing was not in self defense, and unless the State has done so in this case, you must find the defendant not guilty."
This instruction is too broad as to the burden on the State. When the defendant produces proof from which it is inferable that an admitted slaying arose from the necessity of self preservation (ordinarily in peril of life or limb and without means of escape), the State may counter with proof (which to persuade must convince beyond a reasonable doubt) that the killer created the necessity.
Ordinarily, the State's burden to thwart self defense is expressed as a negative, e. g., "showing that he was not free from fault in bringing on the difficulty * * *." See Charge 10 in Smith v. State, 183 Ala. 10, 62 So. 864; for a succinct approved charge see James v. State, 167 Ala. 14 (hn. 4), 52 So. 840. Proving a negative is not novel. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
There was no error in refusing Charge 7, supra. This point is the only claim of error in appellant's brief.
We have examined the whole record under Code 1940, T. 15, § 389 and conclude the judgment below is to be
Affirmed.
All the Judges concur.