#### Tillis *v.*The State.

*Murder.*

(Decided February 12, 1914.

64 South. 527.)

1. *Trial; Reception of Evidence; Objection.*— Where answers responsive to questions are given without objection to such question, the court cannot be put in error for failure to exclude such answer.

2. *Homicide; Self-Defense.■*— A charge asserting that the burden was on the-state to show that defendant could not have retreated without increasing his danger, misplaced the burden of proof, and was properly refused.

3. *Same.*— Where a defendant sets up self-defense, he has the burden of showing that he could not haye retreated without increasing his peril.

4. *Same.*— Where there was evidence that the killing was in a sudden affray, and was by accused with the use of a deadly weapon which *17was concealed before the commencement of the fight, and that decedent had no deadly weapon, a charge asserting that defendant was not on trial for carrying a concealed pistol, but for murder, and that the mere fact that he had a pistol at the time of the killing did not, as a matter of law, aggravate any offense of which he was charged, or justify a conviction unless under the evidence, the jury believed beyond a reasonable doubt that defendant is guilty under the indictment, in view of the provisions of section 7086, Code 1907, was properly refused, as confusing and as liable to convey the impression that the possession of a pistol by defendant could not have the effect of aggravating any offense of which he was guilty.

Appeal from Henry Circuit Court.

Heard before Hon. M. Sollie.

Wayne Tillis was convicted of second degree murder, and appeals.

Affirmed.

Tbe following are tbe charges refused to defendant:

(1) Appears from opinion.

“(C) Tbe defendant in tbis case is not on trial for carrying concealed pistol, but be is on trial for murder under tbe indictment in tbis case; and tbe mere fact, if it be a fact, that defendant bad a pistol on tbe occasion of tbe sbooting of deceased does not, as a matter of law, aggravate any offense with wbicb defendant is charged in tbis indictment, nor justify tbe conviction, unless under tbe evidence you believe beyond a reasonable doubt and to a moral certainty that be is guilty under tbe indictment on wbicb be is on trial.”

W. O. Long, E. H. Hill, and Espey & Farmer, for appellant.

Counsel discuss tbe admission of evidence, and insist that it was error and in view of tbe new rule, resulted in *injury.*— Coffman *v. L. &*A., 63 South. 529. Under tbe peculiar facts of tbis case, tbe burden of proof was on tbe state to show that defendant could have retreated without increasing bis *danger.*— Whit-*ten’s*Case, 115 Ala. 72; *Compton’s*Case, 110 Ala. 24; *Henson’s*Case, 112 Ala. 41; *Howard’s Case,*110 Ala. 92; *Springfield’s Case,*96 Ala. 81.

*18R. C. Brickell, Attorney General, T. H. Seat, Assistant Attorney General, and W. L. Lee, for the State.

WALKER, P. J.

No difficult or novel question is presented by the exceptions reserved to rulings made by the trial court on objections to evidence. No one of those rulings affords to the appellant any tenable ground of complaint.

Special complaint is made in the argument in behalf of the appellant of the action of the court in permitting the solicitor, on the cross-examination of the defendant’s witness Jack Porter, to elicit statements made by the deceased to the Avitness. These statements Avere brought out in responsive answers to questions to the witness, to which no objection was interposed. The defendant could not thus speculate on the ansAvers the witness Avould make, and then require the court to exclude the testimony so brought *out.*— Hudson *v.*State, 137 Ala. 60, 34 South. 854.

The court properly refused the requested written charge, to the effect that the burden of proof is on the state to shoAV that the defendant could not have retreated without increasing his danger. The use of the Avord “not” gave the charge a meaning different from that probably intended. It is not to be supposed that the intention Avas to request the court to charge that the state assumed the burden of proving the defendant’s inability to retreat.

Besides, a defendant who was under the duty to retreat, if this was practicable Avithout, increasing his peril, has the burden of proving this ingredient of self-*defense.*— Robinson *v.*State, 155 Ala. 67, 45 South. 916; *Naugher v.*State, 105 Ala. 26, 17 South. 24.

Written charge C, requested by the defendant, is involved and confusing, besides being so expressed as to *19be liable to convey tbe impression that tbe defendant’s possession of a pistol in circumstances of wbicb there was evidence could not bave tbe effect of aggravating any offense of wbicb be was guilty in killing tbe deceased. If, as there was evidence tending to prove, tbe killing was in a sudden encounter or affray, and was caused by the defendant by tbe use of a deadly weapon, wbicb was concealed before tbe commencement of tbe fight, tbe deceased having no deadly weapon drawn, tbe killing was murder, when, but for such concealment of a deadly weapon by tbe defendant and tbe failure of tbe deceased to bave one drawn tbe homicide may bave been of lower grade. — Code 1907, § 7086. Tbe charge in question was properly refused.

There is no error in tbe record.

Affirmed.