This is an appeal by defendant from conviction for murder in second degree.
Briefly, the evidence tended to show that defendant was in the rest room of a bowling alley; that deceased there made remarks which were derogatory towards defendant and which defendant overheard; that, subsequently, as deceased, with his companion, and defendant, with his three companions, were leaving the alley, the fatal encounter between defendant and deceased took place; that defendant struck deceased in his chest with a knife and that death resulted from the wound thus inflicted.
Evidence for the state tended to show that defendant was aggressor and guilty of unlawful homicide. Evidence for defendant tended to show that deceased was the aggressor and that defendant struck in self-defense.
Defendant argues that the court erred in admitting, over objection, two confessions allegedly made by defendant. Defendant states: "It is our contention that there was at least a reasonable doubt as to whether or not the confessions were voluntary."
As to each confession, proper predicate was laid showing that the confession was voluntary. All the witnesses, who testified that defendant made the confessions, said that no threats or inducements were made to defendant to obtain the confessions. There is no evidence of threat, promise of reward, or other inducement having been made to defendant. If these confessions were obtained by hope or fear on the part of defendant, the evidence, as it seems to us, fails to show it; but, on the contrary, shows that the confessions were voluntary.
This court has held that, where it was made to appear very clearly that the confessions testified to were voluntary, the court did not err in overruling objection thereto. Talbert v. State, 140 Ala. 96, 37 So. 78; Smith v. State, 253 Ala. 220, 43 So.2d 821.
Defendant argues that the court erred in overruling his motion for new trial on the ground that the verdict was contrary to the great preponderance of the evidence.
The witness Richardson testified that defendant stepped toward deceased, made a statement to deceased, and "swung on" deceased, hitting him in the region of his left chest. We are of opinion that the evidence is sufficient to support the verdict and that the court did not err in overruling the motion for new trial on the ground that verdict was contrary to great preponderance of the evidence.
Defendant's refused Charge 30 is substantially the same as Charge 2 which was refused to defendant in Chaney v. State, 178 Ala. 44, 59 So. 604. This court held that the charge was not defective for failure to hypothesize the duty to retreat or freedom from fault, and that the court erred in refusing to give the charge.
The court indicated that the omitted hypotheses were unnecessary in the Chaney case because the undisputed evidence showed that "defendant did nothing to provoke the deceased before shooting," and that defendant, who acted at his own place of business, "was under no legal duty to retreat therefrom."
In the case at bar, the evidence is in dispute as to whether defendant was free from fault in provoking the difficulty. It is clear that he was not at his home or place of business. He was, therefore, under the duty to retreat. Because Charge 30 fails to hypothesize freedom from fault and the duty to retreat, its refusal was not error. Chambers v. State, 264 Ala. 8, 84 So.2d 342.
Defendant's requested Charge 36 is substantially the same as Charge 6 which was refused to defendant in Harris v. State, 96 Ala. 24, 11 So. 255. Its refusal was held to be error where defendant was under no duty to retreat and there was no evidence that defendant was at fault in bringing on the difficulty.
On the other hand, where the defendant is under a duty to retreat, or the evidence is not undisputed that he is free from fault, as in Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, and in the case at bar, Charge 22 in Shikles and Charge 36 here are correctly refused.
See: Gibson v. State, 126 Ala. 59, 28 So. 673; Gaston v. State, 161 Ala. 37, 49 So. 876; Cheney v. State, 172 Ala. 368, 55 So. 801; Forman v. State, 190 Ala. 22, 67 So. 583; Ex parte Owen, 223 Ala. 467, 137 So. 311; Fowler v. State, 236 Ala. 87, 181 So. 266; Ward v. State, 242 Ala. 307, 6 So.2d 394; Smith v. State, 243 Ala. 254, 11 So.2d 471; Gipson v. State, 262 Ala. 229, 78 So.2d 293; Brooks v. State, 263 Ala. 386, 82 So.2d 553.
Defendant argues that the court erred in overruling his objection to the admission into evidence of certain photographs of the body of deceased.
The photographs are not before us. It is obvious that we cannot reverse for this supposed error since we cannot, in the absence of the photographs, determine upon their admissibility. Presuming in favor of the correctness of the judgment, we cannot reverse for admission of the photographs. Long v. Rodgers, 19 Ala. 321; Burton & Sons Co. v. May, 212 Ala. 435, 103 So. 46.
Because of matters which occurred during argument of counsel, we are of opinion that the judgment should be reversed and defendant granted another trial. The record shows the following:
The following excerpt appears in one of the confessions, to wit:
The following is an excerpt from the cross examination of Morrison, who was a companion of defendant and present at the fight, to wit:
Other than what is set out above, we find in the record no reference to a crow. We find no evidence to the effect that defendant was like a slick and slimy crow. We are of opinion that the court erred in overruling defendant's objection to the argument that defendant was like a slick and slimy crow because that argument is not supported by the evidence. Green v. State, 233 Ala. 349, 171 So. 643. Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof. Coleman v. State, 87 Ala. 14, 6 So. 290.
The argument that deceased had been away from his family and that the widow had cried is like the argument held improper in Thomas v. State, 18 Ala.App. 268, 90 So. 878, where the court said:
It is true that the court sustained objection to the argument to effect that defendant had deprived the wife and children of deceased of his companionship, and to effect that the jury would be aiding "in the spilling of blood in this county" if they did not convict.
Nevertheless, such unauthorized statements "are certainly calculated to engender unduly the sympathies of the jury on the one hand, or to inflame their minds with prejudice and passion upon the other hand." See: Blue v. State, 246 Ala. 73, 19 So.2d 11.
The court erred in overruling the motion for new trial.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and HARWOOD, JJ., concur.