In our discussion above relative to the exceptions reserved to the court's oral charge, as to the burden of proof, we cited numerous authorities among which was the case of Perry v. State, 211 Ala. 458, 100 So. 842, 843. We advert to said case again it being on all fours and fully analogous to the case at bar. In said case, our Supreme Court, speaking through Justice Sayre said:
"The leading proposition of this appeal, defendant's main cause of complaint, is that the court, instructing the jury on the subject of self-defense — the only litigable question in the case — told the jury that the burden rested upon defendant to prove to the reasonable satisfaction of the jury the necessity for taking the life of deceased, and that there was no reasonable avenue of escape. That this burden in some sort rested upon the defendant has long been the settled law of this court. The proposition has been frequently stated by the court. It will suffice to cite a few of the cases. Gibson v. State,89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96; Naugher v. State,105 Ala. 29, 17 So. 24; Henson v. State, 112 Ala. 41, 21 So. 79; McGhee v. State, 178 Ala. 4, 59 So. 573. But defendant's complaint is that the burden was too heavily laid upon him, *Page 519 that he should not have been required to prove the named elements of self-defense to the reasonable satisfaction of the jury, but that he met the requirements of the law if his evidence created a reasonable doubt as to whether he acted in self-defense, and the latest decisions of this court have been in accord with this contention. McGhee v. State, supra; Roberson v. State, 183 Ala. 43, 62 So. 837; Ex parte State ex rel. Attorney General in re Baker v. State, 210 Ala. 374,98 So. 215. True, the court also instructed the jury to acquit if, upon the whole evidence, that tending to support the plea of self-defense included, they entertained a reasonable doubt whether the defendant had acted in self-defense; but, as to that, it is complained that, by refusing to change its instruction on this point when exceptions were reserved, the court added emphasis to its erroneous statement of the law (Berry v. State, 209 Ala. 120, 95 So. 453), and that the trial court could not avoid a reversal by charging the law in contradictory ways, for, in such case, the jury would not know which instruction to follow (Roberson v. State, 183 Ala. 60,62 So. 837). We apprehend the trial court intended no ambiguous statement of the law — in fact there are decisions of this court which may seem to sustain the court's method of stating the law of self-defense to the jury; but, in view of the later cases to which we have referred, the court concludes that the judgment of conviction in this case should be reversed.
"Reversed and remanded."
In our original opinion this court said:
"There was also error in the court's action in overruling defendant's objection to the State's attorney's argument wherein he stated, when a person sets up self-defense that the burden is upon him to come forward with evidence to show that he is free from fault in bringing on the difficulty. Such burden rests upon the State and not upon the defendant."
In connection with the foregoing the record shows the following:
"During the argument of the case by Mr. H. M. Hall, one of the Attorneys for the State, the following proceedings occurred:
"Mr. Seale: We object to the gentleman arguing to the jury that as a matter of law and in his opinion that where a man sets up self-defense that he has to prove freedom from fault in bringing on the difficulty.
"The Court: I think he has a right to say that.
"Mr. Hall: Can I argue that?
"The Court: You have a right to argue that and I overrule the objection.
"Mr. Seale: We object to the gentleman making the argument and except to the Court's overruling the objection.
"The Court: I understood the gentleman to say that when a person sets up self defense that the burden is upon him to come forward with evidence to show that he is free from fault in bringing on the difficulty.
"Mr. Seale: We object to that as being stated as a matter of law.
"The Court: He stated that in his opinion the Court would so charge the jury. He also stated that it was his opinion that that was the law.
"Mr. Seale: Does your Honor overrule my objection?
"The Court: Yes.
"Mr. Seale: We except, and move the Court to exclude the gentleman's statement as to the law, as being absolutely contrary to the law.
"The Court: Overrule the motion.
"Mr. Seale: We except."
The above quoted statement of counsel for the State is not the law, and has never been the law. The objection interposed should have been sustained, and the motion to exclude the erroneous argument should have been granted. The statements of the court (1) "I think he has the right to say that"; and (2) "I understood the gentleman to say that when a person sets up self-defense that the burden is upon him to come forward with evidence to show that he was free from fault in bringing on the difficulty," were erroneous, and highly prejudicial, and had the tendency to emphasize the illegal and objectionable argument of counsel for the State. *Page 520
It is insisted by the State that the incorrect statements by the court and solicitor had no influence with the decision of the jury. To this insistence we are not in accord. The trial court could not avoid a reversal by charging the law in contradictory ways for in such case the jury would not know which instruction to follow.
The application for rehearing, by the State, is overruled.
Opinion extended.