FREEMAN v. STATE

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Docket Number

6 Div. 788.

Attorney(S)

Chas. R. Wiggins, Jr., and Caine O'Rear, Jr., Jasper, for appellant. Copy of venire containing one or many names that do not belong thereon, or omission of names that do, deprives paper served of being copy as required by law. Code 1940, Tit. 30, § 63; Carwile v. State, 148 Ala. 576, 39 So. 220. Where witness is sought to be impeached by contradictory statement, attention of witness should be directed with reasonable certainty to time, place and person involved and supposed contradiction. Walker v. State, 220 Ala. 544, 126 So. 848; Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442; Southern R. Co. v. Williams, 113 Ala. 620, 21 So. 328. Witness may always be impeached by showing he made contradictory statements as to material matter before grand jury, but inquiry must be limited to contractions and not corroborations. Mullins v. State, 31 Ala. App. 571, 19 So.2d 845; Adams v. State, 33 Ala. App. 136, 31 So.2d 99. Accused may be witness only on his own request, and his failure to make such request creates no presumption against him and may not be subject of comment by counsel. Code 1940, Tit. 15, § 305. Accused was entitled to cross-examine witness on any matter testified to by him on direct examination to test memory, credibility and accuracy of witness. Covis v. State, 22 Ala. App. 579, 118 So. 49; Id., 218 Ala. 704, 118 So. 920. Confession is admissible only when voluntarily made without being induced by any promised benefit or fear of threatened injury. Machen v. State, 16 Ala. App. 170, 76 So. 407; Caraway v. State, 20 Ala. App. 362, 101 So. 912; Smith v. State, 20 Ala. App. 442, 102 So. 733. Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Owen Bridges, of counsel, for the State. Mistake in given name of juror, when juror was present, and was excused because of illness, will not be sufficient ground to quash the venire. Code 1940, Tit. 30, §§ 67, 37; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Zininam v. State, 186 Ala. 9, 65 So. 56. Where evidence is not patently irrelevant or inadmissible, lower court will not be reversed for overruling general objection thereto. Leonard v. State, 36 Ala. App. 397, 58 So.2d 138; Id., 257 Ala. 239, 58 So.2d 142; Cromer v. State, 36 Ala. App. 540, 60 So.2d 379; 7 Ala.Dig., Crim. Law, 1043(2). Error, if any, in excluding evidence is harmless where evidence of same substance and effect is subsequently placed before jury. Kornegay v. State, 33 Ala. App. 338, 33 So.2d 405; Roberson v. State, 233 Ala. 442, 172 So. 250. A confession is not rendered inadmissible merely because it is obtained by propounding questions which assume defendant's guilt and follows exhortation or admonitions to tell the truth. Smith v. State, 253 Ala. 220, 43 So.2d 821; Phillips v. State, supra; Curry v. State, 203 Ala. 239, 82 So. 489.

Judges

CARR, Presiding Judge.

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Smart Summary

Factual and Procedural Background

The appellant, Grady Freeman, was indicted for murder in the first degree in Walker County, Alabama. The trial resulted in a conviction for murder in the second degree. The homicide occurred within or near the curtilage of Freeman's home, involving the shooting of Alcie Williams, who was the brother of Freeman's wife and a long-term, uninvited guest engaged in making whiskey on the premises. The incident involved a violent altercation culminating in Freeman shooting Williams multiple times. The case proceeded through trial and appeal, raising issues concerning jury venire, witness impeachment, admissibility of confessions, and jury instructions.

Legal Issues Presented

Whether a mistake in the given name of a juror on the venire list is sufficient ground to quash the venire.
Whether the impeachment of witnesses by reference to contradictory grand jury testimony was properly conducted.
Whether a prosecuting attorney’s remark regarding the defendant’s right to testify constituted an impermissible comment on the defendant’s failure to testify.
Whether the confessions made by the defendant were voluntary and admissible.
Whether the trial court erred in refusing various requested jury charges, particularly those relating to self-defense, duty to retreat, and the burden of proof.

Arguments of the Parties

Appellant's Arguments

The appellant contended that the venire list was inaccurate due to a mistake in a juror’s given name, which deprived the defendant of a proper jury list.
Appellant argued that the impeachment of his sons as witnesses was improper because the solicitor failed to provide adequate predicate by specifying time and persons present at the grand jury testimony.
The appellant asserted that the solicitor’s remark about the defendant’s right to testify was a comment on his failure to testify, which was improper and prejudicial.
Counsel challenged the voluntariness of the defendant’s confessions, claiming they were induced by coercion or promises of reward.
The appellant submitted numerous written jury charges, many relating to self-defense, the duty to retreat, and the burden of proof, which were refused by the trial court.

State's Arguments

The State argued that a mere mistake in the name of a venireman does not warrant quashing the venire, especially where the juror appeared and was excused for illness.
The State maintained that the impeachment of witnesses was proper because the solicitor sufficiently identified the time and persons present to avoid undue surprise.
The State contended that the solicitor’s remark was not a comment on the defendant’s failure to testify but a procedural statement anticipating the defendant’s possible testimony.
The State asserted that the confessions were voluntary, supported by testimony that no inducements or threats were made.
The State supported the trial court’s refusal of certain charges, arguing they were either abstract, covered by other instructions, not supported by evidence, or improperly stated the law, particularly concerning self-defense and duty to retreat.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Carwile v. State, 148 Ala. 576, 39 So. 220	Requirement that venire list be accurate and complete	Distinguished as inapplicable due to subsequent changes in law; mere mistake in juror's name not sufficient to quash venire.
Irwin v. State, 220 Ala. 160, 124 So. 410	Clarification on venire list accuracy	Confirmed that Carwile does not apply under current law.
Ziniman v. State, 186 Ala. 9, 65 So. 56	Effect of mistake in juror's name on venire validity	Supported holding that such mistakes do not merit quashing venire.
Phillips v. State, 248 Ala. 510, 28 So.2d 542	Venire list accuracy; admissibility of evidence; impeachment rules	Applied to uphold venire despite name error and to support evidentiary rulings.
Sparks v. State, 261 Ala. 2, 75 So.2d 103	Proper predicate for impeachment by prior inconsistent statements	Guided court’s acceptance that witnesses were sufficiently apprised of time and context of grand jury testimony.
Smith v. State, 183 Ala. 10, 62 So. 864	Jury not required to accept all testimony as true	Supported refusal of misleading charge requiring jury to accept witness statements without doubt.
Perry v. State, 94 Ala. 25, 10 So. 650	Duty to retreat outside home curtilage	Applied to reject charge omitting duty to retreat when shooting occurred outside home grounds.
May v. State, 253 Ala. 517, 45 So.2d 698	Proper jury instructions on self-defense	Supported refusal of duplicative or improper charges on self-defense.
National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492	Prejudice from prosecutorial remarks and remedy	Used to assess whether solicitor’s remark on defendant’s right to testify was prejudicial.
Rhodes v. State, 34 Ala. App. 481, 41 So.2d 623	Limits on prosecutorial comments on defendant's silence	Supported conclusion that solicitor’s remark was not improper comment.
Aaron v. State, 37 Ala. 106	Voluntariness of confessions	Applied to uphold admission of confession despite some indications of coercion.
Levison v. State, 54 Ala. 520	Confession admissibility standards	Affirmed voluntariness of defendant’s statements.
King v. State, 40 Ala. 314	Voluntariness and admissibility of confessions	Supported court’s ruling on confession evidence.
Stone v. State, 105 Ala. 60, 17 So. 114	Confession admissibility	Reinforced voluntariness requirement.
Reedy v. State, 246 Ala. 363, 20 So.2d 528	Standards for voluntary confessions	Applied to the facts to uphold confession admission.
Johnson v. State, 242 Ala. 278, 5 So.2d 632	Confession voluntariness	Supported court’s conclusion on confession evidence.
Mobile O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199	Scope of cross-examination to test witness credibility	Guided court’s discretion in limiting cross-examination on irrelevant matters.
Armour Co. v. Cartledge, 234 Ala. 644, 176 So. 334	Cross-examination discretion	Supported trial judge’s discretion in limiting inquiry.
Broadway v. State, 35 Ala. App. 86, 45 So.2d 480	Trial judge’s discretion in cross-examination	Affirmed trial court’s exercise of discretion.
Smith v. State, 15 Ala. App. 7, 72 So. 593	Limits on cross-examination	Supported trial court’s ruling on cross-examination scope.
Doughty v. State, 228 Ala. 568, 154 So. 778	Jury charge requirements	Applied in evaluating refused charges as abstract or covered.
Edwards v. State, 205 Ala. 160, 87 So. 179	Jury instructions and evidence support	Used to assess propriety of refused charges.
Clark v. State, 36 Ala. App. 159, 57 So.2d 375	Jury charge standards	Referenced in evaluating misleading or argumentative charges.
Valentine v. State, 19 Ala. App. 510, 98 So. 483	Duty to retreat and self-defense	Applied to reject charges omitting retreat duty.
Nunn v. State, 19 Ala. App. 619, 99 So. 738	Duty to retreat	Supported court’s refusal of charges lacking retreat instruction.
Dykes v. State, 34 Ala. App. 216, 39 So.2d 21	Self-defense and retreat	Applied similarly to other retreat-related precedent.
Morris v. State, 23 Ala. App. 448, 126 So. 612	Argumentative jury charges	Used to support refusal of argumentative charges.
York v. State, 34 Ala. App. 188, 39 So.2d 694	Jury charge clarity	Applied to reject elliptical charges.
Mitchell v. State, 129 Ala. 23, 30 So. 348	Elements of self-defense in jury instructions	Referenced in rejecting charges lacking essential elements.
Ray v. State, 248 Ala. 425, 27 So.2d 872	Proper application of jury instructions on self-defense	Used to assess misleading charge emphasizing only part of evidence.
Milner v. State, 24 Ala. App. 350, 135 So. 599	Jury instruction on self-defense	Supported rejection of misleading instructions.

Court's Reasoning and Analysis

The court first addressed the venire list issue, concluding that a mere mistake in a juror's given name, where the juror was present and excused for illness, does not justify quashing the venire. This was supported by established precedent and statutory authority.

Regarding witness impeachment, the court found that the solicitor sufficiently identified the time and context of the grand jury testimony, thus complying with the rule designed to prevent undue surprise. The court acknowledged some questions were not strictly contradictory but determined the substantial rights of the accused were not prejudiced.

The court analyzed the prosecutor's remark about the defendant's right to testify and concluded it was not a comment on the defendant's failure to testify but rather a procedural statement. The court emphasized the trial judge's prompt instruction to the jury to disregard the remark, finding no reversible error.

On the voluntariness of confessions, the court reviewed the evidence and found only minimal indication of coercion or inducement, insufficient to render the confessions inadmissible. The court cited multiple precedents affirming the standard for voluntariness.

The court examined the numerous refused jury charges, determining that many were either abstract, covered by other instructions, unsupported by evidence, or improperly stated the law. In particular, charges omitting the duty to retreat were refused because the shooting occurred outside the home curtilage where retreat was required. Charges related to self-defense were found properly covered by the court’s oral instructions, which the court deemed full and accurate.

The court declined to delve into a detailed factual recount beyond the issues necessary for legal analysis, focusing primarily on the self-defense claim and evidentiary rulings.

Holding and Implications

The judgment of the trial court is affirmed.

The court upheld the conviction for murder in the second degree, rejecting the appellant's challenges regarding jury venire accuracy, witness impeachment, prosecutorial remarks, voluntariness of confessions, and refusal of certain jury charges. The decision directly affects the parties by sustaining the conviction without setting new legal precedent, relying instead on established law and proper application of trial court discretion.

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Grady FREEMAN v. STATE.

The following charges were refused to defendant:

"5. The court charges you that you are not authorized to find a verdict of guilty on any testimony of the witness or witnesses if you have a doubt as to the truth of his or their statements."

"10. The court charges the jury that it is not necessary under the evidence in this case that the defendant, Freeman, should have been actually in danger of death or great bodily harm at the time he shot Williams in order for him to be justified in shooting Williams. Freeman had the right to act on the appearance of things at the time, taken in the light of all evidence. If the circumstance attending the shooting was such to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he, Freeman, had the right to shoot Williams in his own defense although as a matter of fact, he was not actually in danger; and if the jury believes this defendant acted under such conditions and circumstances as above set out, the burden of showing he was not free from fault in bringing on the difficulty is on the State and if the State has not shown beyond all reasonable doubt that Freeman was not free from fault in bringing on the difficulty, then the court charges the jury you should find the defendant, Freeman, not guilty.

"11. The law gives a person the same right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm, as it does to prevent his life from being taken, and such person may excusably use this necessary force to save himself from a felonious assault."

"21. The court charges the jury that if at the time this defendant shot Williams there was apparent danger of the defendant receiving great bodily harm at the hands of Williams, whether in fact there was any real danger or not, then the defendant, Freeman, had a right to shoot Williams to protect himself; and if, after considering all the evidence in the case, you believe this to be the truth, then the court charges the jury you should find this defendant not guilty provided the defendant was free from fault in bringing on the difficulty."

"33. If you believe from the evidence that Grady Freeman was assailed by A. Williams within the precincts of his dwelling, and that A. Williams was at fault in instituting the combat, then you must find the defendant not guilty."

CARR, Presiding Judge.

The appellant, Grady Freeman, was indicted for murder in the first degree. The trial resulted in a conviction for murder in the second degree.

The list of jurors served on the defendant contained the name of Minnie L. Rufus King, residing in Beat 30, Walker County, Alabama.

It appears that Rufus King was the only person by that name who resided in this beat. He did not respond to the summons, but when the case was called for trial he was sent for and appeared. After being questioned by the court in the presence of the defendant and counsel he was excused because of ill health.

Appellant's attorneys moved to quash the venire, taking the position that the mistake in the name did not apprise the defendant of an accurate list.

In brief counsel relies on Carwile v. State, 148 Ala. 576, 39 So. 220.

In the case of Irwin v. State, 220 Ala. 160, 124 So. 410, the Supreme Court pointed out the inapplicability of the Carwile case because of subsequent changes in the law.

In any event, it does not appear that we have an analogous factual situation in the case at bar. There was only a mistake in the name of the venireman by the inclusion of "Minnie L."

The courts have held that a mere mistake in the name of a juror appearing on the venire list does not give rise to any merit in a motion to quash. Ziniman v. State, 186 Ala. 9, 65 So. 56; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Savage v. State, 174 Ala. 94, 57 So. 469; Gordon v. State, 22 Ala. App. 214, 114 So. 279; Jackson v. State, 22 Ala. App. 133, 114 So. 68.

See also, Title 30, Sec. 37, Code 1940.

We do not see the necessity or need to go into a detailed delineation of the evidence.

The question of prime concern from a factual approach is whether or not the accused was acting in self-defense when he took the life of the deceased.

Alcie Williams, the dead man, was a brother of the appellant's wife. It appears that he was a shiftless kind of person. Apparently he imposed himself on the hospitality of his sister and brother-in-law. In any event, just prior to the homicide he had been a prolonged guest in their little rural home and he made no contributions to expenses of the very large household.

It is accurate to observe that he was engaged in making whiskey while he was a visitor in the home. There is some tendency in the evidence that the appellant aided in this unlawful enterprise. This relationship, be it business or social, brought about inharmonious differences which led up to the fatal shooting.

The homicide occurred within the curtilage of the defendant's home or at a place close by.

The state toxicologist gave the following description of the wounds on the body of the deceased:

"A. There was some superficial abrasions on his face, on the right jaw and on the neck below the jaw, and on the left side on the cheek particularly on the cheek bone and on the underside of the jaw about half way between the chin and the ear. There was a bruise in the upper eyelid of the right eye, about three-eighths of an inch by three-fourths of an inch, right in the inner corner of the eye. The left upper eyelid was blackened with the greatest discoloration on the inside.

"Q. Did you observe what appeared to be a bullet wound in this body? A. Yes, sir.

"Q. Will you point out on me just where it was located? A. One was two inches below the line of the shoulders, one and one half inch to the right of the exact center of the chest. The bullet came out at a point two inches to the right of the spine and at a point six inches below the base of the neck. There were two bullet wounds in the top of the head, slightly forward of the exact top, separated by about one or one and one-fourth inches, one being slightly to the right of center and the other slightly to the left of center. The one that was to the left of center went down through the brain and struck the skull about level with the car, about the bottom of the brain pan, and glanced back and lodged near these holes. The one on the other side went down and struck the bone right back of the eye and shattered it and went on into the face or neck muscles down several inches into the neck."

The question of the sufficiency of the evidence to sustain the verdict is raised only by a motion for a new trial. Unquestionably we should not disturb the judgment of the court in his action in overruling the motion. Counsel does not contend that we should.

Two of the defendant's sons were present at the time of the homicide and testified in their father's behalf. They had been called and testified before the grand jury which returned the indictment.

On cross-examination in the trial below each of these boys was interrogated at length with reference to his testimony before the grand jury. It was developed that their testimony before the grand jury was in some aspects in conflict with that given at the trial then in progress.

The insistence is made that, for impeachment purposes, the solicitor did not pose the proper predicate in that he failed to state the time the boys were before the grand jury and the persons present in this group.

The reason for the rule upon which the position is based is to avoid taking the witness by undue surprise. If his attention is directed with reasonable certainty to the time, place, and persons present, it cannot be said that the rule has been violated.

In the instant case the solicitor directed the attention of the witnesses to the fact that he was inquiring about a time subsequent to the homicide, when he (the solicitor) was present and asking the questions and when a number of other persons were in the room.

This question was recently reviewed by the Supreme Court in the case of Sparks v. State, 261 Ala. 2, 75 So.2d 103. The opinion goes into the matter at some length.

We entertain the view that these witnesses were not taken by surprise and they were not in doubt about the occasion to which the questions related.

It may be noted that the objections did not point out to the court any nonadherence to the predicate rule.

It is urged also that many of these questions which were propounded to these witnesses for impeachment purposes did not relate to matters that were inconsistent with the witnesses' testimony on direct examination. Cotton v. State, 87 Ala. 75, 6 So. 396; Western Ry. of Alabama v. Turrentine, 197 Ala. 603, 73 So. 40; Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Phillips v. State, 248 Ala. 510, 28 So.2d 542.

Because of the great number of inquiries involved it is not practical to point out each one specifically. We find that there are some which do not refer to matters that are strictly contradictory. In many instances in this aspect no objections were interposed. Where objections are made the queries were more or less preliminary and led up to inquiries that were in conflict with statements made on direct examination.

We have given considerable study to the record in this aspect. Taking the entire setting into account, we are convinced that the substantial rights of the accused were not jeopardized in this particular. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

During the progress of the introduction of the State's evidence a question was asked by the solicitor to which objections were interposed. After the grounds were stated, the solicitor said: "The defendant will have a right to testify." The court granted a motion of appellant's attorney to exclude this statement and instructed the jury to disregard the remark and not to let it in any manner influence their verdict.

The defendant did not testify in his own behalf. It is urged that the effect of this remark by the solicitor was a comment on the failure of the appellant to testify.

We are convinced that the prosecuting officer did not have this in mind. He did not know at the time whether or not the defendant would offer himself as a witness. He was urging the court to overrule the objection on the basis of his idea that the defendant could clarify the inquiry when he testified.

As we have indicated, the judge responded to the request by excluding the remark. He went further and gave specific instruction to the jury. There was no motion for a mistrial. Hawkins v. State, 29 Ala. App. 221, 195 So. 762.

We would have a different situation if the remarks of the solicitor had been so prejudicial that eradication would have been impossible. National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492; Pure Milk Co. v. Salter, 224 Ala. 417, 140 So. 386.

Clearly the statement does not come within this category. Rhodes v. State, 34 Ala. App. 481, 41 So.2d 623.

Lacy Williams, a brother of the deceased, was interrogated very briefly by the solicitor. In fact, he was asked only eleven questions. Included in these were some relating to his identification. The effect of his testimony was that he saw his brother prior to the homicide and at that time he was in apparent good health. That he saw him shortly after the shooting at which time he was dead. Williams was the first witness introduced by the State.

On cross-examination appellant's attorney attempted to show where the deceased had lived for several months prior to his death. Unquestionably at this early stage in the proceedings this inquiry was not material. In sustaining the objections the court observed that he could not see the materiality of the matter at that time and invited counsel to indicate the purpose and relevancy of the attempted proof.

The courts are committed to the rule which provides that free and extensive cross-examination should be permitted for the purpose of testing the memory and sincerity of a witness and to inquire into any matter which would tend to show motive, interest, bias, etc. Mobile O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199; Armour Co. v. Cartledge, 234 Ala. 644, 176 So. 334.

The latitude thus allowable, or its restrictions, rests largely in the discretion of the trial judge. Broadway v. State, 35 Ala. App. 86, 45 So.2d 480; Smith v. State, 15 Ala. App. 7, 72 So. 593.

It cannot be said that this discretion was abused in disallowing proof of matters that were entirely foreign to the factual issues which were developed at the time of the ruling.

It appears from the record that the defendant made statements with reference to the killing on two different occasions shortly after the homicide. The solicitor and two other officers were present each time.

Counsel insists that the proof shows that each of these confessions was not voluntarily made.

We review the circumstances incident to the first statement. The solicitor asked the witness this question:

"Immediately before he made that statement, did you or anyone in your presence of hearing, or anyone in the presence of hearing of this defendant, offer him any reward or hope of reward or any inducement or threaten him in any manner to get him to make a statement?"

The reply was in the negative.

At this point in the proceedings the court permitted counsel for the defendant to examine the witness on voir dire. During this examination the following questions and answers appear:

"Mr. O'Rear: To refresh your recollection, I will ask you if Mr. Wilson didn't say, 'The boys told me the way it happened, you haven't told me the right of it.'

"The Witness: No, Mr. Wilson didn't say that.

"Mr. O'Rear: Did you say that?

"The Witness: Yes, sir.

"Mr. O'Rear: Did you further say, or did Mr. Wilson say anything about bringing him any clothes?

"The Witness. Yes, sir."

This is the only evidence which in any manner tends to establish that some coercion or inducement was employed to get the accused to make the statement. We do not think that this was sufficient to render the confession inadmissible. Aaron v. State, 37 Ala. 106; Levison v. State, 54 Ala. 520; King v. State, 40 Ala. 314; Smith v. State, 248 Ala. 363, 27 So.2d 495; Stone v. State, 105 Ala. 60, 17 So. 114; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Johnson v. State, 242 Ala. 278, 5 So.2d 632.

With reference to the second statement, counsel did not interpose any objections to its introduction. We are frank to state that there is no proof which has the least tendency to show that this statement was not also voluntarily made.

Refused Charges

The court refused thirty-nine written charges which the defendant tendered.

The following are either abstract, covered by the oral charge or given charges, or are not based on the evidence: 6, 9, 12, 13, 14, 15, 18, 19, 20, 23, 24, 27, 28, 30, 31, 32, 34, 38, 40, 41, 42, 43, 44, 45, 46, and 48. Doughty v. State, 228 Ala. 568, 154 So. 778; Title 7, Sec. 273, Code 1940; Edwards v. State, 205 Ala. 160, 87 So. 179.

Charge 5 is misleading. In order to convict the defendant the jury was not required to accept as true every statement of the witnesses. Smith v. State, 183 Ala. 10, 62 So. 864; Webb v. State, 162 Ala. 58, 50 So. 356; Clark v. State, 36 Ala. App. 159, 57 So.2d 375.

Number 10 omits any reference to the duty to retreat.

In developing the evidence the attorneys made frequent use of a chart or drawing which depicted the locale of the homicide and buildings and roads thereabout. It was not introduced in evidence, so we are somewhat handicapped in interpreting the evidence in this aspect.

According to the proof the defendant shot the deceased first while the former was in a barn near his home and the latter was standing at the barn door.

Apparently the deceased was not mortally wounded by this first shot. He ran out into a field, which, as best we can determine, was not a great distance from the yard surrounding appellant's home. The defendant followed and there shot the deceased twice. We are unable to tell from the record whether or not the place where the last shots were fired was within the curtilage of the home. If it was in a field, as the evidence seems to indicate, the charge in question was properly refused, because the accused was not relieved of the duty to retreat. Perry v. State, 94 Ala. 25, 10 So. 650; Vickers v. State, 18 Ala. App. 282, 91 So. 502; Valentine v. State, 19 Ala. App. 510, 98 So. 483; Nunn v. State, 19 Ala. App. 619, 99 So. 738; Dykes v. State, 34 Ala. App. 216, 39 So.2d 21.

Charges 11 and 29 are practically in duplicate. They were refused without error. May v. State, 253 Ala. 517, 45 So.2d 698; Williams v. State, 36 Ala. App. 26, 58 So.2d 646; Williams v. State, 36 Ala. App. 583, 61 So.2d 861.

Charge 21 omits any reference to retreat. It is also faulty in not relating the "apparent danger" to the defendant's belief. Certainly it would have to appear to him as a reasonable man that he was in imminent danger at the time he fired the fatal shots.

Charge 16 is argumentative. Morris v. State, 23 Ala. App. 448, 126 So. 612; Clark v. State, 36 Ala. App. 159, 57 So.2d 375.

Charge 17 is elliptical. York v. State, 34 Ala. App. 188, 39 So.2d 694.

Charge 26 predicates a right to an acquittal on the doctrine of self-defense without setting out the essential elements of the doctrine. Mitchell v. State, 129 Ala. 23, 30 So. 348.

The court instructed the jury fully and accurately as to these elements.

Clearly charge 33 was properly refused.

Charge 35 invades the province of the jury and is not directed solely to the altercation with which we are concerned.

Charges 36 and 39 make no reference to, freedom from fault.

The trial judge charged the jury quite fully in respect to the evidence relating to the violent and turbulent character of the deceased.

Charge 47 is much involved and has a tendency to mislead the jury. It places too much emphasis on a portion of the evidence and ignores other proof. The instruction could have no application to the shooting in the field. Ray v. State, 248 Ala. 425, 27 So.2d 872; Milner v. State, 24 Ala. App. 350, 135 So. 599.

We have attempted to discuss each presented question which in our view merits any treatment.

The judgment below is ordered affirmed.

Affirmed.