The appellant was indicted for murder in the first degree, convicted of manslaughter in the first degree, and sentenced to the penitentiary for a term of five years. The only insistence of error on the part of the trial court is the refusal to give several written charges requested by the appellant.
Charge 1 was properly refused. While this charge was held good in the case of Cheney v. State, 172 Ala. 368, 55 So. 803, it will be noted that in this case there was no duty devolving upon defendant to retreat, the difficulty having occurred in defendant's pool room, and there was no evidence that he was at fault in bringing on the difficulty. In the instant case the duty of retreat rested upon the defendant, if he could do so without increasing his peril, and the evidence is in sharp conflict as to who was at fault in bringing on the difficulty.
Charge 2 was properly refused. Ex parte Davis, 184 Ala. 26,63 So. 1010.
In the case of Chaney v. State, 178 Ala. 44, 59 So. 604, the refusal to give charge 7 was held to be error, and said charge, with the elements of freedom from fault and retreat embraced, was approved in Bluett v. State, 151 Ala. 50,44 So. 84. The court in Chaney's Case held that "the defendant was in his place of business, and did not have to retreat," and that "the undisputed evidence showed that the defendant did nothing to provoke the deceased before shooting." The charge was abstract, and there was no error in its refusal.
Charge A is a duplicate of charge 7, except that charge A does hypothesize retreat. It does not, however, hypothesize freedom from fault, and there was no error in its refusal.
Charge C deals with the proposition that one is authorized to act upon the appearance of things, and that it is not necessary *Page 407 that the danger be actual. This principle of law is included in the court's oral charge.
We find no error in the record, and the judgment of conviction is affirmed.
Affirmed.
On Rehearing. In view of the fact that the latest expressions of the Supreme Court seem to hold that charge A should be given, irrespective of the hypothesis of freedom from fault, we are compelled to recede from the original opinion in this case. O'Rear v. State, 188 Ala. 71, 66 So. 81; Minor v. State,16 Ala. App. 401, 78 So. 317; Langston v. State, 8 Ala. App. 129,63 So. 38; Tyus v. State, 10 Ala. App. 10, 64 So. 516.
The application for rehearing is granted, affirmance is set aside, and the cause is reversed and remanded.
Reversed and remanded.