The defendant was indicted for murder in the first degree, was tried, and convicted for murder in the second degree, and was given a sentence of 13 years in the penitentiary. The defendant killed his own father, and this fact is admitted. The deceased was shot three times, and some of the evidence for the state tends to show that, after he was shot down, the defendant mauled and beat him in the face and on the head and body with rocks, crushing some of the frontal bones of the face. There were no eyewitnesses to the killing, and the defendant sets up self-defense in justification. There are numerous exceptions to the evidence, and it is insisted that the court erred in its rulings thereon, and also in the giving and refusal of written charges and in portions of its oral charge to the jury. Several witnesses were permitted to testify to the confessions and admissions of the defendant. This testimony was objected to on the grounds that no proper predicate had been laid to authorize the admission of the evidence in regard to the defendant's confession of the crime. The predicate which had been proven met every requirement of the law, and affirmatively showed that the confessions were made by the defendant voluntarily and of his own accord, it having been shown that there were no promises of any kind *Page 165 or character made to him by any one, neither were there any threats or inducements or any effort to intimidate him in any manner. The predicate was sufficient. Crain v. State, 166 Ala. 1,52 So. 31. The evidence was properly allowed, and the court did not err in overruling the objections. Nor was there error in the court's ruling on the testimony of state's witness Short, as to the kind and character of the wounds upon the deceased and their location. This testimony was properly submitted to the jury, as the killing was admitted, and no injury could follow to the defendant by overruling the objections interposed by defendant.
The state was properly allowed to introduce in evidence the clothing worn by the deceased at the time of his death. The clothing had been properly identified. Huguley v. State, 4 Ala. App. 31,58 So. 814. There are numerous other questions relative to the ruling of the court on the evidence. We are of the opinion, however, that these questions need no separate treatment here. Suffice it to say that they have been given careful consideration, and found to be without merit, and a discussion thereof is not deemed necessary.
Exception was reserved to a portion of the oral charge wherein the court stated that "the defendant has the burden to prove his plea of self-defense." In this there was no error. Jones v. State, 176 Ala. 20, 22, 58 So. 250; Roberson v. State, 183 Ala. 43, 57, 62 So. 837. Especially was there no error in this instance when the portion of the oral charge excepted to is taken in connection with the whole charge of the court, for the charge as a whole properly defined self-defense, and in no manner departed from the well-settled rule of law in this state, which is that when the defendant has established a pressing necessity on his part to take life, which involves disproof of an opportunity to retreat safely, the onus is on the prosecution to show that he was at fault in provoking or bringing on the difficulty. Gibson v. State, 89 Ala. 121,8 So. 98, 18 Am. St. Rep. 96; Roberson v. State, supra. An isolated part of an oral charge may, if considered as standing alone, unaided by that which preceded and that which followed, be reversible error; but when taken in connection with all of the oral charge and in connection with the written charges, as we must take it, be free from error, and hence no injury would follow.
Refused charge 21 is elliptical, in that it uses the word "along." It was probably intended for the word "alone"; there was no error in its refusal.
Refused charges 22, 23, and 23 1/2 are patently bad, for reasons too numerous to mention, and their infirmities need no discussion or citation of authorities.
Refused charge 24 is not the law, and there was no error in its refusal. It places the burden upon the state of proving the defendant's plea of self-defense.
The rule of law undertaken to be embodied in refused charge 25 was substantially and fairly given to the jury in the court's general charge. This charge as presented omits the element of malice as a constituent of murder in the first degree, and was otherwise faulty.
Refused charges 26, 27, 28, and 29 are either bad, argumentative, abstract, elliptical, or unintelligible, and their refusal was without error.
Refused charge 30 undertakes to state the law of self-defense. Aside from the charge being structurally bad and involved, the defendant received the full benefit of this phase of the law in the court's general charge to the jury. The principle of law involved in this charge was substantially and fairly covered by the oral charge of the court, and therefore there was no error in its refusal.
There being no error in the record, the judgment of the lower court is affirmed.
Affirmed.
On Rehearing. We have carefully considered the application for rehearing, which is confined to one proposition, and that is that portion of the oral charge of the court excepted to, defining the law of self-defense. This question has been fully discussed in the original opinion in this case, and, upon a re-examination thereof, we are convinced that the holding therein is sound, and as a further authority the case of Miller v. State,107 Ala. 40, 58, 19 So. 37, is cited.
Application overruled.