Tlie defendant killed his wife, Topsey Watts, and Aims convicted of murder in the first degree, and sentenced to life imprisonment.
Under section 7572 of- the Code, no objection can be taken to an indictment for irregularities in the organization of the grand jury, “except that the jurors were not draAvn in the presence of the officers designated by laAV,” “and neither this objection nor any other can be taken to the formation of a special grand jury summoned by the direction of the court.”
Neither the motion to quash the indictment, nor the second, third, or fourth pleas in abatement, exhibited this objection to the indictment, and they Avere properly eliminated.
The first plea, setting up this objection, presented a proper issue for the jury, and on the evidence adduced the court instructed the jury to find for the state. The evidence on this issue is not shown by the bill of exceptions, and Ave cannot revieAv this ruling.
What defendant said about the killing, and his attitude and conduct AAdth respect thereto, not being in the nature of direct confessions of guilt, however incriminatory they might be, Avere admissible against him without preliminary proof of their■ voluntary character.—McGehee v. State, 171 Ala. 19, 55 South. 159. The direct admissions of the defendant that he did the killing were all sufficiently shoAvn to have been made voluntarily, without inducements or threats. The trial court did not err in its rulings in these particulars.
*30The witness Challen was properly allowed to state that an ax found by him after the killing on the premises where it occurred had blood and hair on it when found and examined by him. This was the statement of a simple fact as to which expert knowledge was not needed.
Whether or not the state’s witness Cobb saw a certain negro preacher frequently at defendant’s house, or saw him giving letters from another negro to defendant’s wife, was wholly immaterial to any issue involved, and objections to these questions were properly sustained.
The fact that deceased was when killed in a state of pregnancy so advanced as to be visible to observation cannot be regarded as entirely irrelevant to some aspects of the case. It might serve to explain the occupation by the wife of a separate apartment' in the house, and might also aid the jury in estimating her efficiency or inefficiency as a fighting machine, and her consequent ability or inability to pursue, overcome, and kill or dangerously injure defendant; her alleged Aveapon being only a butcher knife of unknown length, Avhile she was a Aroman of average size, about 5% feet tall, and defendant Avas an able-bodied man. We think this evidence Avas properly admitted.
It Avas clearly competent to prove by the witness Challen that several hours after the killing he searched defendant’s house for Aveapons and found none; the reference being especially to the butcher knife Avith Avhich defendant claimed deceased Avas attacking him.
The fact that on the day of the killing deceased attacked defendant with scissors, accompanying the attack - Avith. a threat, should have been admitted in evidence. This Avas not going into the details or merits of the altercation, but only showing its general nature.
*31In the course of liis oral charge the trial judge instructed the jury that, before defendant could successfully plead and éstablisli self-defense, it ivas necessary for him to show that at the time of the killing there was no convenient or reasonable mode of escape open to him by retreatinv , declining combat, unless by retreating he increa,v.d his danger. Defendant duly objected to .this part of the charge, the insistence being that this principle, though ordinarily applicable, cannot be applied to a killing in defendant’s own home.
The reason of the rule is said to be that “the law regards a man’s house as his castle, or, as was anciently said, his tutissimum refugium, and, having retired thus far, he is not compelled to^ yield further to his assailing antagonist. When he has reached this refuge, he may stand at bay, and may turn on and kill his assailant, if this be apparently necessary to save his own life; nor. is he bound to escape from his house in order to avoid his assailant.—Jones v. State, 76 Ala. 8, 16. And it seems, when attacked in one part of his house he need not withdraw to another part, though he- may safely do so and there find a secure asylum.—Brinkley v. State, 89 Ala. 34, 8 South. 22, 18 Am. St. Rep. 87. The rule is of ancient origin, and indeed is deeply rooted in the elemental instincts of humanity. In its original applications it doubtless had in view only attacks from external aggressors, but in the case of Jones v. State, supra, it was held equally applicable to partners and tenants in common; the court declaring that “the doctrine, of retreat, or of declining combat by retreat, has no application to cases of this character, and that the right of self-defense may be perfect without it, where one partner or co-tenant is assailed by another, each being equally entitled to the possession of the house or premises where the attack is made.” The *32reasoning of the court in support of this conclusion is, we think, convincing. In the recent case of Hutcheson v. State, 170 Ala. 32, 54 South. 119, the defendant killed her husband in the house jointly occupied by them as a dwelling, and the doctrine of Jones v. State, supra, was applied. A charge was there requested by defendant “that it was not necessary for the defendant to retreat, because the facts in the case show that the defendant was in her own castle,” and for its refusal the judgment of conviction was reversed. The report of the case shows only that the attack and the killing occurred in the home whieh the defendant and the deceased were jointly occupying.
In the present case it appears without dispute that the house in which the killing was done had been occupied jointly by defendant and deceased as their common home, and was then so occupied, except that about 10 days previously deceased had separated herself from her husband and children, and was in the exclusive occupation of one of the two rooms of the house. Had the evidence showed that defendant went into this room and was there attacked by his wife, the case might be different, and it may be that a due regard for the sacredness of human life would require a qualification of the principle announced in Jones v. State, and Hutcheson v. State, to the extent that those occupying separate rooms under a common roof should be held to the duty of retreating each to his own quarters, or at least from the other’s quarters, rather than to stand there and kill, if such retreat might reasonably avoid the necessity of killing and offer safety to the one assailed.
The evidence, however, does not show that defendant ■ entered his wife’s room, nor that he was anywhere but in his own room, when he fired the shot that killed her. The rooms were adjoining, and the door open between *33them; and it is at least inferable from defendant’s testi-. mony that he met the alleged assault standing in his own room. There is, therefore, no occasion to consider the exceptional case above suggested. It results that the charge of the trial court on this phase of the case was erroneous in predicating the duty of retreat under the circumstances described by defendant in his testimony before the jury.
Charges 26, 27, 28, 60%, 66, and 67 do not clearly inform the jury that the appearance of danger, if not real, must not only have been such as to impress the mind of a reasonable man with its verity, but must also have actually so impressed the mind of the defendant, and were for this reason well refused.
Charge C was free from this fault, and should have been given.
Charges 16, 32, and 64% were faulty, in that they required defendant’s acquittal, unless the jury should believe beyond a reasonable doubt that he was guilty “as charged in the indictment”; that is, of murder in the first degree.
Charge 40 was faulty, in that it was argumentative and also obscure in meaning.
Charge 58 has been in substance approved by this court, and its refusal was erroneous.—Taylor v. State, 149 Ala. 32, 42 South. 996.
For the errors pointed out the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
All the Justices concur.