DeArman v. State

71 Ala. 351

Opinion

STONE, L

The defendant was indicted for murder, and convicted of murder in the second degree. This was an acquittal of murder in the first degree, and the prisoner can not again be tried for that highest grade of felonious homicide. In Mitchell v. State, 60 Ala. 26, we defined the constituents of murder in the first degree, and drew the distinction between that and murder in the second degree. We adhere to what we there said, and will not repeat it. We will not consider any questions raised by this record, relating to murder in the first degree. In any future trial of tbis case, all distinction between murder in the first degree and murder in the second degree will be wholly immaterial and irrelevant. If the defendant is guilty of murder at common law, as declared in our rulings thereon, and if it is proven with that measure of proof the law exacts in criminal cases, then the jury should find him guilty of murder in the second degree, for they- can go no higher. In such finding, they must fix the duration of imprisonment in the penitentiary, not less than ten years.

It is objected in behalf of the accused, that the Circuit Court should have instructed the jury as to the constituents of manslaughter, and that the failure to do so is an error of which appellant can complain. There are two answers to this : First, if the accused deemed the instructions not full enough on any point, he should have asked specific instructions; and failing to do so, we can not consider the question ; second, the bill of exceptions purports to set out all the evidence, and we fail to discover any testimony tending to show the offense, if any was committed, was, or could be,\ manslaughter. The defendant was either guilty of murder, or he slew the deceased in self-defense. One phase of the testimony tends to prove a most causeless murder. If the jury are convinced beyond all reasonable doubt, that this version is the true one, then the defendant should be pronounced guilty of murder. On the other hand, there is other testimony tending to show that the first hostile demonstration was made by the deceased. If the jury believe the defendant did not provoke, or bring on the difficulty ; that he approached the piazza, ou which deceased was standing, in an orderly and peaceful manner; that deceased replied to him angrily or insultingly, advanced towards him, and placed his hand upon, or in the direction of his pistol-pocket, in such rpanner as to indicate to a reasonable mind that liis purpose was to draw and fire; then the defendant was authorized to anticipate him, and fire first; and the rule would not be varied, if it should turn out . the deceased was in fact unarmed. The rule of self-defense ini such cases is, that persons may and must act on the reasonable appearance of things ; for the law of self-preservation would be' very incomplete, if persons thus menaced. were required to wait until the weapon was presented, ready for deadly execution. The danger, howevpr, must be real, or so manifestly apparent, as to create a reasonable belief of present impending peril to life or limb; and the accused must not have been instrumental in provoking or bringing it on.-Ingram v. State, 67 Ala. 67; Leonard v. State, 66 Ala. 461; Cross v. State, 63 Ala. 40. So, if the accused approached the deceased for the purpose of bringing on a difficulty with him, or had previously formed the design of taking bis life, then the plea of self-defense is unavailing. If the accused, with no intention of bringing on a difficulty, approached the deceased in a peaceable manner, and the deceased made the first hostile demonstration, by drawing, or attempting to draw a weapon, or by appearing to do so, under the rules declared above; and if the accused was in such proximity to the deceased as to render it hazardous to attempt flight; or if the assault was with a deadly weapon, and was open and direct, and in perilous proximity, then the law would not require the accused to endanger his safety by attempted flight.-Storey v. State, ante p. 329. The law is a reasonable master, and has equal regard for every human life under its jurisdiction. It recognizes love of life as a natural and legitimate sentiment; and while it can not be moulded or controlled by notions of chivalry, it permits every one who is without fault, and who has adopted every reasonably safe expedient to avert the necessity, to take the life of his assailant, rather than to lose his own. The Divine law does not require us to love our neighbor better than ourselves.

In Hadley v. State, 55 Ala. 31, we said: “The law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence which proves the killing shows also that it was done without malice.” In other words, the burden of proving that a homicide was committed in self-defense rests on the defendant, unless it can be deduced from the facts and circumstances which prove the killing. We adhere to that doctrine.

Thomas Pelham testified for defendant that the deceased, Crook, outside of his friends, was regarded as a turbulent and dangerous man. He had testified he knew Crook’s general character for peace. The court thereupon, on motion of the prosecution, “required the .defendant to incorporate in the question as to Crook’s character the words “blood-thirsty,” “quarrelsome,” “turbulent,” “revengeful,” and “dangerous.” We are not sure we understand this exception. If the court instructed the counsel that he could not interrogate the witness as to Crook’s character for violence, unless he asked him whether or not he had the character of being “blood-thirsty, quarrelsome, turbulent, revengeful and dangerous,” then the rule was too exacting. A man may have a bad character for peacefulness, without possessing all the vicious qualities enumerated. There are degrees in a quarrelsome, or tui’bulent character, and, the proper predicate of knowledge being laid, counsel should be free to ask such legal questions as he may elect to ask.

W. F. Push and others, rebutting witnesses-for the State, had testified that Crook’s character for peace and quiet was good. They were then asked whether they had not heard of ■several enumerated acts, of violence done by Crook. The witnesses were not allowed to answer these questions. In this the Circuit .Court erred. Character, in this connection, is the estimate which the public places on the person, the subject of the inquiry; his reputation. When a witness is called to testify in regard to it, he must not speak of or from his individual knowledge of the acts or conduct of the person inquired about. His reputation or standing, whether good or bad, is the matter to be deposed to. Character is the estimation in which one is held by the public who know his standing. Thus, one may have the reputation of being peaceable or quarrelsome, harmless or dangerous and blood-thirsty, truthful or the contrary, honest or dishonest. A witness, having knowledge of this estimate in which such person is held by the public, may testify as to his reputation or character, although he may have no personal knowledge that he is peaceable, truthful, honest, or the contrary. On cross-examination a witness as to character may be interrogated as to the foundation of his opinion. And, as character manifests itself by the manner in which one is esteemed, spoken of, or received in society, it is always permissible, on cross-examination, to ascertain the extent of the witness’ information, and the data from which he draws his conclusion. The weight of such testimony must depend largely oh the reasonableness of the conclusion the witness draws from the premises as he may depose to them.-Ingram v. State, 67 Ala. 67.

As we have heretofore said, there was some testimony tending to show that immediately preceding the billing Crook made a hostile demonstration by moving towards the defendant, and moving his right hand towards his hip pocket. If the movement forward indicated a hostile purpose, and if the jury believe, as fact, that Crook did first make a movement as if to draw a pistol, or if the testimony generates a reasonable doubt whether or not Crook first made such movement as if to draw, then the defendant should not be convicted of murder, unless they find he had previously made up his mind to take Crook’s life, or that he sought or provoked the altercation. Previously formed design on defendant’s part, or any step taken to bring ■on the difficulty, if found to exist, will deny to him the right to the plea of self-defense. In this connection, the testimony offered to prove the violent or dangerous character of the deceased, if believed, should be considered. On all doubtful questions as to who was the aggressor, the violent or bloodthirsty character of the deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood-thirsty nature. But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on, or sought by the accused. The principles we have just announced have reference to the clauses of the general charge, which are made the 6th and 7th exceptions of the defendant. They should be modified according to these views. Let us not be misunderstood. If the accused had the previously formed design to take Crook’s life, and carried it into effect pursuant thereto, or if he provoked the difficulty, then Crook’s character for violence, no matter how clearly proved, will avail him nothing.

In what we have said, we have declared the law in reference to both phases of the testimony. This it is the duty of the court to do, no matter what he may conceive to be the relative weight of the testimony on the opposing sides. With that he has nothing to do. The jury alone pronounce on the weight of testimony, and under their solemn oaths render their verdict, according to their findings of fact, and the law as declared to them by the court. •

We decline to consider the exception numbered 1 to the general charge, but leave that question open, as no inquiry of murder in the first degree will arise on another trial. It affirms that murder, intentionally committed pursuant to a form design to take life, is the equivalent of a willful, deliberate, malicious and’premeditated killing, and falls within the first degree. We are not prepared to say this is error, but we need not decide it. See Mitchell v. State, supra. It would clearly be murder, and we do not understand that to be controverted. That is enough for this case.

We do not think the Circuit Court erred in admitting the confessions testified to have been made to E. G-. Lee, while he was returning with the prisoner to Jacksonville after the arrest. No threats, promises, or hostile demonstration was made, at all calculated to induce the confessions, made as they were testified to have been. The prisoner evidently looked upon Lee, who had him in custody, as his protector, and we fail to discover in the circumstances any evidence of threats made, or inducements held out, which could, in the slightest degree, induce the confession alleged to have been made. According to the evidence, the confession was voluntary.

The first chai'ge asked by defendant asserts a correct proposition of law, and should have been given. The second charge asked contains, as one of its postulates, that “Crook advanced in the direction of the defendant with a gun or guns.” The testimony tends to show the guns were standing in the hall of the hotel, and there is no testimony that Crook then had a gun or guns. This charge was rightly refused for this reason, if for no other.-Tyree v. Lyon, 67 Ala. 1; 1 Brick. Dig. 338, § 41. Defendant’s charges 3 and 4 relate to murder in the first degree,, and need not be considered.

The 4th charge given at the instance of the State was misleading, and should not have been given. True, previous threats do not make out the plea of self-defense. There must be ‘an actual or apparent present, impending peril to life or limb, either so menacing as to render any attempt at escape but an increase of the peril, or such peril as can not reasonably be otherwise avoided, before life can be taken, even by one who is without fault in the premises. But previous threats, if proved, and known to the actor, should be weighed by the jury, in determining whether the accused acted under the reasonable conviction of present, imminent peril. Of themselves, threats previously made are insufficient; but they should be weighed with other acts indicating hostility, in determining whether the fatal act was done under the reasonable and honest conviction that its perpetration was, then and there, necessary to save the accused from the loss of his life, or from suffering grievous bodily harm. But this doctrine must be taken with what is said above. If the accused sought or provoked the difficulty, or if he availed himself of it as a pretext for executing a design previously formed to commit the homicide, then this would not be self-defense, but murder. The 8th charge given declares the correct rule as to when previous threats are to exert no influence with the jury.

The 6th charge given omits one qualifying clause. True, self-defense, as a rule, must be proved by the defendant. In other words, the onus is on him to make it good. But the rule has an exception. If the testimony which proves the homicide, proves also its excuse or justification, then the burden is not shifted, and the defendant need introduce no proof.

There are many exceptions in this case, and every step in the contest seems to have been severly combatted. We have found no errors, save those above pointed out.

Reversed and remanded. Let the accused remain in custody, until discharged by due course of law.