dissenting.
I would reverse this conviction and remand for a new trial on the basis of the failure of the trial judge to charge the jury on defendant’s principal theories of defense.1
The trial judge correctly charged the jury on the general law of self-defense. While defendant entered such a plea, his theory of defense was not merely that he slew his adversary under a reasonably founded fear that it was necessary that he do so in order to save his own life, or protect himself against great bodily harm. His whole defense was that he acted with split-second precision, without time for deliberate thought or reflection; that he thought he was dying and was literally “scared to death”; that he had sustained a brain concussion and was “addled”; and, as the majority phrased it he had “neither time nor ability to leave the scene in safety or to make any sort of rational decision in that regard.”
None of these factors was covered in the trial judge’s charge. The duty to retreat versus the right to stand and fight, was heavily involved, and yet, the trial judge did not even allude to retreat in his charge.
These issues were squarely before the Court. They demanded a charge. As Mr. Justice Brock held in State v. Thompson, 519 S.W.2d 789 (Tenn.1975):
The general principle in criminal cases is that there is a duty upon the trial judge to give a complete charge of the law applicable to the facts of the case and the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge. (Emphasis supplied). 519 S.W.2d at 792.
This is an automatic right; it is not dependent upon any special request. It flows from the constitutional duty of the trial judge to “declare the law.” Article VI, Section 9, Constitution of Tennessee. The failure of the trial judge to charge on a material issue is fundamental and reversible error.
Defendant tendered a special request grounded on Morrison v. State, 212 Tenn. 633, 371 S.W.2d 441 (1963), which contains the precise language insisted upon by defendant. Morrison is the first Tennessee case to explore the duty to retreat. Its significance is a matter of debate among the bench and bar. See, e. g., the dissenting opinion in the Court of Criminal Appeals correctly pointing out that it
. does not limit the application of the retreat doctrine to the home. It adopts the broad general proposition that one who is where he has a lawful right to be is under no duty to retreat and then *861treats the particular proposition of a specific place.
R. Kendrick, in Criminal Law and Procedure-1963 Tennessee Survey, 17 Vand.L. Rev. 977, 979 (1977), adopts the view that Morrison “classified Tennessee with the majority ‘no-retreat rule’ ” jurisdictions as to self-defense generally and does not limit application of the no-retreat rule to defense of the habitation.
On the other hand, many lawyers and judges view this phase of the Morrison holding as dicta. The majority opinion simply confines Morrison to its own facts and holds that “[i]t does not stand as general authority for the adoption of the ‘true man’ rule.”
Because Morrison, by dicta or otherwise, is the only Tennessee case on the retreat issue, and further because it adheres to the majority rule in this country, the trial judge either should have given the requested charge or should have given a full and correct charge on the duty to retreat.
I discuss the proof, in the light of the appellant’s insistences, not with a view to questioning sufficiency, but solely to validate the foregoing views with respect to the duty to charge.
First, it should be pointed out that this tragedy occurred in the night, on a lonely country road, with only the defendant, the deceased and a crony of the deceased present. The deceased bore defendant a grudge based upon past occurrences and repeatedly, on the afternoon and early night of the crime, had announced that he was going to beat up defendant with a bottle; that he was going to “get” him; or similar threats to even the old score. None of this is disputed.
Defendant was heavily under the influence of alcohol, if not drunk. His blood test showed a content of .22% ethyl alcohol. This is not disputed.
Pursuant to his announced plan he lured defendant into accompanying him, along with three of his companions, to the Burnt Bridge, on a county road, for the ostensible purpose of drinking and conviviality. This is not disputed.
Two of deceased companions did not want to participate in the venture and, at first, did not go to the Burnt Bridge. Later, they went alone to this area and begged deceased not to carry his plan into execution. This is not disputed.
It is not disputed that suddenly and without warning, while defendant had his back turned, the deceased approached him from the rear and broke a Coca-Cola bottle over his head.
It is not disputed that the Wound or gash in defendant’s head was three or four inches long and had to be sewn up. The fatal shot was fired three to five seconds after the injury, which was of a type calculated to cause mental impairment. He sustained a cerebral concussion and was in a Memphis Hospital four full days. He was in great pain and thought he was dying at the time he fired the fatal shot.
Immediately after the killing he went to the home of the Chief of Police who, testifying for the State, said “[h]e was screaming, he was in shock, completely hysterical.” Elsewhere he said defendant was “screaming,” “crying,” and “hysterical.”
The following question and answer given by the defendant, and as a part of his theory, is relevant:
Q. Did you think at that time that the fight was over?
A. In my book it wasn’t. I was scared that he was fixing to finish me off.
The following portion of defendant’s testimony made a full charge on retreat absolutely mandatory:
Q. Is there any reason that you couldn’t have gotten in that truck and gotten out of there, Mr. Kennamore?
A. Like I said, I was out of my head. I was scared. I thought I was dying and all I was doing was trying to protect myself.
Q. You were scared; you thought you were dying, but your only thought was to get a gun and go back to the scene and clear things up.?
A. What if I jumped in the truck and they’d have drug me out?
* * * * * *
*862Q. Was that your only thought; just to get that gun and go back there and settle that score?
A. Wasn’t no score to settle. I was protecting myself.
Q. Nobody jumped on you, though, or prevented you from getting in that truck and getting on down that road and getting out of there, was it?
A. Everything happened real fast.
Questions of preponderance or sufficiency are not involved. We are dealing with a retreat issue that was not charged.
This case comes to us on three assignments of error. The majority did not even allude to the last two.
Petitioner’s second assignment of error reads as follows:
That the Court of Criminal Appeals erred in affirming the Trial Court’s refusal to charge as follows on the subject of the right to use deadly force in self-defense for a small period of time following the assault:
For the defendant to be excused for the taking of a life of another on the ground of self-defense, the reasonable belief of danger and the actual fear of the one who attacked him must exist at the moment the fatal deed is committed, even though the greatest danger to the defendant may have preceded the act of killing by a small but appreciable interval of time.
This is a correct statement of the law taken almost verbatim from Hull v. State, 74 Tenn. 249, 260 (1880), and should have been charged. It was not covered in the main charge and was vital in a case wherein the killing occurred after the attack as opposed to simultaneously therewith.
Petitioner’s third assignment reads as follows:
That the Court of Criminal Appeals erred in affirming the Trial Court’s refusal to charge as follows on the subject of the standard of reasonableness to which a victim of an assault who suffers serious injury shall be held:
If the defendant was without fault when he was the victim of an assault committed with deadly force or an assault which results in great bodily harm, he is entitled to repel the force of the attacker with whatever force that reasonably and honestly appears to be necessary under the circumstances, and, if in repelling such attack, the defendant acts in the reasonably held belief that he must use deadly force, and if while suffering from a serious wound suffered in the attack he used deadly force near in time to when the wound was afflicted, his use of such deadly force is justified as an act of self-defense.
Again, this is a correct statement of the law and should have been charged.
It is inconceivable to me that in a case where retreat figured so prominently that the charge was silent as to the controlling factors.
The jury should have been charged that there must be an available, safe and effective avenue of retreat; that there must have been ample time; that defendant’s physical and mental condition were factors that should be taken into consideration; that consideration must be given to all the circumstances as they reasonably and honestly appeared to the defendant; and that the whole transaction should be looked to as a series of events. Moreover, the jury should have been instructed that all factors should be considered in the light of the fact that failure to retreat is a circumstance to be considered, along with all others, in order to determine whether the defendant went further than he was justified in doing and that a failure to retreat is not categorical proof of guilt. This is a fair resume of the holdings of our courts.
I would remand for a new trial.
. Defendant, in this Court, does not assign any error relating to the sufficiency of the evidence. Therefore, sufficiency is not a question before the Court.