— The defendant was indicted, and tried for murder in the second degree, and convicted of manslaughter in the first degree.
The exceptions reserved, and which are assigned as error, are upon the refusal of the court to instruct the jury as requested in writing by the defendant. The first charge refused reads as follows : “If the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb and could not retreat in safety, or without putting himself at a disadvantage, then the killing would not be wrongful, and it would be the duty of the jury to acquit him, unless the jury further believe from the evidence that the defendant was at fault in bringing on the difficulty.”
The law is very careful of human life, and although a person without fault, may be in great peril, involving imminent danger to life or limb, the duty to retreat and avoid the danger rests upon him, if he can do so with reasonable safety to himself; but where the peril is great, and the danger to life or limb imminent, and the person is without fault, the law does not require him to increase his danger by putting himself at a disadvantage.
The principle involved in this charge has been directly adjudicated and declared to be correct. In the case of McDaniel v. The State, 76 Ala. 5, the court at the request of the State charged the jury that “To make out a case of justifiable self-defense the evidence must show that the difficulty was not provoked or encouraged by the defendant.” Commenting on this charge, the court held it “was faulty.” That it made it a condition of acquittal under the plea of self-defense, that the evidence must show that the difficulty was not provoked or encouraged by the defendant. This was a misplacing of the burden of proof. Enough for the defendant, if he showed that he was really, or to ordinary appearance, in imminent peril of life or limb, from which he had no other reasonable means of escape. . . . The rule is that its existence (fault of the defendant) when shown is an answer to the plea of self-defense, but its existence is not presumed so as.to impose on defendant the burden of its disproof.” •
In Cleveland v. State, 86 Ala. 9, it is said: “The man-slayer must be free from fault in bringing on or provoking the difficulty. The onus of disproving this freedom from fault is not on the defendant. He must be exposed to *35present, impending peril, that is, he must be presently .exposed to imminent danger of losing his life, or of suffering-grievous bodily harm,, or must reasonably appear to be so, from which he has no other reasonable mode of escape, without apparently increasing the imminence of his peril.” The charge requested is in accord with the rule declared in the foregoing cases, and should have been given.
The second charge requested was clearly the law, as decided many times by this court. The danger need not be real, but it is sufficient if the apparent danger is such as to create in the mind of a reasonable man a just apprehension of imminent danger to life or limb. 3 Brick. Dig., p. 219, 220; 86 Ala. supra; 76 Ala. supra.
There was evidence upon which these charges could be predicated, and consequently they were not abstract.
Beversed and remanded.