The question was asked the witness Mrs. Baker by defendant's counsel on her direct examination:
"If there was an easy way of escape from where Commodore [defendant] and that negro was."
The objection to this question was properly sustained as calling for a conclusion.
Defendant's counsel asked J.E. Baker, defendant's witness., "Did you tell Jess [deceased] to get your plow stock and plow with it?" to which witness answered, "No, sir." On motion by the state the question and answer were excluded. There was no error in this. The testimony was not a part of, nor did it relate to, the res gestæ.
The defendant excepted to the following excerpts from the court's oral charge:
(1) Then the burden shifts to defendant to establish to your reasonable satisfaction the other two elements of self-defense.
(2) And then the burden is upon the defendant to establish the other two elements of self-defense to your reasonable satisfaction.
Upon the court's granting these exceptions defendant requested in writing the giving of charge 2 as follows:
"If upon all the evidence the jury have a reasonable doubt as to whether or not defendant was free from fault in bringing on the difficulty; as to whether or not at the time of *Page 434 striking the fatal blow defendant was or reasonably apparently was, and honestly believed he was, and acted in the belief that he was, in imminent danger of losing his life or sustaining great harm at the hands of deceased; and as to whether or not he could not or it bodily reasonably appeared that he could not have retreated without increasing his danger, he must be acquitted."
This charge was refused, and these three exceptions embrace the same proposition.
Where excerpt 1 appears the oral charge reads as follows:
"If a man be free from fault in bringing on a difficulty and if he is so circumstanced either as that danger to life or limb is imperious and impending or if he honestly believes from his surroundings, being a reasonable man, that he is in such danger, and that he could not retreat except by increasing his peril, then he had the right to stand his ground and defend himself even to the extent of taking human life. The state carries the burden as a whole; before you would be justified in convicting the defendant the state must offer you proof which when taken with the evidence as a whole convinces you beyond a reasonable doubt that the defendant is guilty of some offense; so far as self-defense is concerned, the state must convince you beyond a reasonable doubt that the defendant was not free from fault in bringing on the difficulty, or, to put it another way, that he was the aggressor. Then the burden shifts to the defendant to establish to your reasonable satisfaction the other two elements of self-defense; that is, that when he struck he was in the danger that I have described, either actual danger or that he honestly believed that there was danger, and that he couldn't depart unless by so doing his peril would have been increased or unless it would have appeared to a reasonable man placed as he was that to depart would have increased his peril. Those are the rules by which you are to be governed. If a man is free from fault in bringing on a difficulty, if he has done nothing to provoke his assailant, and then he is so situated as he honestly believes he is in the danger I have described, and that to retreat would increase his peril, then that man has the right to stand his ground and defend himself to the limit; but no man may, under any circumstances, create the necessity for taking human life and then justify himself under the doctrine of self-defense. I repeat, the state carries the burden as a whole to convince you by the evidence considered as a whole that the defendant is guilty beyond all reasonable doubt before you would be justified in finding him guilty."
Where excerpt 2 appears the court said:
"The state carried the burden as a whole, gentlemen; it's the duty of the state to convince this jury beyond all reasonable doubt of guilt before you could pronounce the defendant guilty. So far as self-defense is concerned, it must convince you beyond all reasonable doubt that the defendant was the aggressor in the difficulty, that is, that he was the man who produced or brought on the difficulty; and then the burden is upon the defendant to establish the other two elements of self-defense to your reasonable satisfaction."
In Clemons Case, 167 Ala. 20, 33, 52 So. 467, 472, the Supreme Court, speaking on this subject, said:
"Strictly speaking, the burden of proof is never on the defendant to establish his innocence or to disprove the facts necessary to establish the crime for [of] which he is charged. In all criminal cases, if the evidence, any or all of it, raises in the mind of the jury a reasonable doubt as to his guilt, he should be acquitted."
In McGhee's Case, 178 Ala. 4, 11, 59 So. 573, 576, it is said:
"While it is incumbent upon the defendant to establish his plea of self-defense, he meets the legal requirements if the evidence creates a reasonable doubt as to whether or not he acted in self-defense."
In Roberson's Case, 183 Ala. 43, in an exhaustive opinion on this subject, the opinion on page 55, 62 So. 837, on page 841, approves this rule:
"If the jury have a reasonable doubt, generated by all the evidence in the cause, as to whether defendant acted in self-defense or not, then they should acquit" — citing Smith v. State, 68 Ala. 424; Hurd v. State, 94 Ala. 100, 10 So. 528.
The same rule is recognized in Wilson v. State, 171 Ala. 25,54 So. 572; Caraway v. State, 18 Ala. App. 547, 93 So. 376; Miller v. State, 107 Ala. 40, 19 So. 37. There are cases in the reports of this state which seem to state a different doctrine, notably Robinson v. State, 108 Ala. 14,18 So. 732; Ragsdale v. State, 12 Ala. App. 1, 67 So. 783; McBryde v. State, 156 Ala. 44, 47 So. 302. If these cases are in conflict with the true rule which has finally been adopted in this state, they should be overruled or modified. But, when these cases are considered in connection with this present contention, the difference may be found to be more apparent than real. For instance, in Robinson v. State,108 Ala. 14-16, 18 So. 732, the opinion does not deal with this question at all, but is directed to the distinction between the words "reasonable" and "probable." In the case of Ragsdale v. State, 12 Ala. App. 1, 67 So. 783, the charge embodying this principle, while discussed by the court, was not held bad on grounds contrary to the rules above stated. And while headnote 5 in McBryde v. State, 156 Ala. 44, 47 So. 302, seems in conflict, the opinion does not bear out the headnote. Reviewing all the cases, we announce the rule to be: The burden is on the state to convince the jury by the evidence, beyond a reasonable doubt, that the defendant is guilty as charged, and this burden is never discharged until after a consideration of the whole evidence, including the evidence offered by defendant as to self-defense, and the jury is so convinced.
The only burden resting on the defendant with regard to his plea of self-defense is *Page 435 that the defendant must offer such evidence in support of such plea as will, when considered with whole evidence, generate in the minds of the jury a reasonable doubt of his guilt.
The rulings of the court were not in line with the foregoing, and for the errors pointed out the judgment is reversed, and the cause is remanded.
Reversed and remanded.