McCLELLAN, C. J.
(1.) Indictment for murder. This is an appeal from a judgment of conviction of murder in the first degree with life sentence to the penitentiary, rendered on the second trial of the defendant. On the first trial there was conviction of murder in the first degree with sentence of death. There was an appeal from that judgment to this court, and it was here reversed, and the cause remanded. On the second trial the circuit judge in thecoursé of his charge given ex mero motu instructed the jury “that the indictment in the case was for murder' in the first degree, and that the State’s contention in the case was that the offense was either - murder- in the first degree ' or nothing, and that the verdict should be a verdict of acquittal or for murder in the first degree, and the court charges the jury that the State’s contention in this re[9]*9spect is correct.” Defendant excepted to this part of the charge. This instruction was upon the effect of the evidence, and not being requested by either party in writing, the giving of-it was violative of section 33z6 of the Code, (Edgar v. State, 43 Ala. 312; Beasley v. State, 50 Ala. 149, 152) ; and it took from the jury the right and duty to ascertain by their verdict whether the defendant was guilty of murder in the first or second degree, in violation of section 4857 of the Code. — Cobia v. State, 16 Ala. 781; Johnson v. State, 17 Ala. 618; Levison v. State, 54 Ala. 520; Brown v. State, 109 Ala. 70, 74 et seg.; Swoope v. State, 115 Ala. 40.
(2.) It does not follow, however, that it is the duty of the court to affirmatively instruct the jury in all-murder cases that they would be justified in-finding the defendant guilty of a less degree of murder than the first degree. To the contrary, it is only by force of the latter statute — § 4857 — that the duty is upon the trial court in a case of this class to instruct the jury in definition of murder in each degree, and to submit to them the ascertainment of the degree in which the defendant is guilty if guilty of murder-’ at -all. In the absence of-this statute the court in a proper case might well charge the .jury on request in writing that -the defendant is guilty of murder in the first degree or of nothing; and in the absence of both the statutes referred to — § 3326 and § 4857 — the court might so charge of its own motion. The operation and effect of the statutory provisions, therefore, is merely to prevent the court from charging on the effect of the evidence except when moved thereto by a party; and to require it to leave to the jury the ascertainment of the degree of murder upon a conclusion of guilt of murder in some degree, and this it must do though on the undisputed evidence the defendant is clearly guilty of murder in the first degree. But when it has done this, it is under no sort of duty to further instruct the jury, at the written request of the defendant or otherwise, that on the evidence the defendant, if guilty at all, might be guilty [10]*10of a lower offense than murder in the first degree, when the evidence without conflict shows that the defendant is either guilty of malicious, willful, deliberate and premeditated homicide or that he struck in self-defense and is not guilty of any offense. The statutes prevent the court from so charging the jury, and they require the ascertainment of the degree of murder, if guilt is found, to be left to the jury; but they do not require the court in such case to affirmatively charge the jury on defendant’s request that on the evidence the defendant may be guilty of a less crime than murder in the first degree. And, therefore,'when the court has complied with the statute in respect of defining murder in the first and second degrees and leaving it to the jury to determine in which degree the defendant is guilty if at all, such charges should not be given. What we have said in this paragraph has reference to the construction and operation of the statutes cited in the abstract, and is not to be taken as indicating any opinion on our part as to Avhether in their absence the trial court would have been justified in charging the jury that on the facts of this case the defendant was guilty of murder in the first degree if guilty of any offense.
(3.) The homicide involved here Avas either murder in the first or second degree, or it was justified on the ground of self-defense. There was, therefore, no occasion for the trial court to give the laAV of manslaughter in charge to the jury, and it properly refused charges, of which that marked D is a sample, which would have authorized the jury to find, or tended to mislead them to the conclusion that they would be justified in finding the defendant guilty of manslaughter only. — Rogers v. State, 117 Ala. 9, 15.
(4.) To say the least of charges I. J. and K. refused to defendant, they tended to confuse and mislead the jury. A man may' form and entertain a design to take life to save himself from grievous bodily harm or death, and may in pursuance of such design actually take life in self-defense and be justified therein; but to say that a homicide may be Avillful, deliberate and premeditated and yet justifiable — to use the statutory words defining [11]*11murder in the first degree to characterize under certain conditions a lawful homicide — is a practice Avell calculated to confound the jury and to lead to Avholly umvarranted results. And in a legal sense, moreover, one cannot he said to act Avith Avillfulness, deliberation and premeditation Avhen his act, though according with his intent at the moment, is coerced by an impending and immediate necessity to take life that his oAvn life may be preserved. These charges were properly refused.
What Ave have said will serve to indicate in part the grounds of our conclusion that the court committed no error in refusing charges asked by defendant Avhich are not specially mentioned; and we find no error in the rulings of the court on charges requested by the State.
(5.) So far as the case had been developed, when it was proposed for the Avitness Will Bishop to testify that his father had invited the defendant to supper on the evening of the homicide, that fact was entirely irrelevant and impertinent, and the court properly excluded the proposed testimony. If this testimony had been offered after the defendant had testified that when he met the deceased on the occasion of the homicide he was on his Ava,y to the elder Bishop’s house in acceptance of such an invitation from him, the court would doubtless have alloAved it to go to the jury.
(6.) The prosecution having admitted for the purpose of avoiding a continuance a shoAving as to what Darby,, defendant’s absent Avitness, would testify if present, in which it Avas set forth that Darby would depose to certain material facts in the case, the trial court, after this shoAving had been put in evidence by the defendant, allowed the prosecution to show by a Avitness that Darby had said to him that he knew nothing about the case. This Avas clearly error. The showing stood in the stead of Darby’s testimony; for all the purposes of the trial it Avas his testimony as a witness on the stand. And he could no more be impeached in respect of it by evidence of contradictory or inconsistent statements made by him, Avithout first calling his attention to them and asking him whether he made them, than if he had personally appeared and testified before the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
McCLELLAN, C. J.
(1.) Indictment for murder. This is an appeal from a judgment of conviction of murder in the first degree with life sentence to the penitentiary, rendered on the second trial of the defendant. On the first trial there was conviction of murder in the first degree with sentence of death. There was an appeal from that judgment to this court, and it was here reversed, and the cause remanded. On the second trial the circuit judge in thecoursé of his charge given ex mero motu instructed the jury “that the indictment in the case was for murder' in the first degree, and that the State’s contention in the case was that the offense was either - murder- in the first degree ' or nothing, and that the verdict should be a verdict of acquittal or for murder in the first degree, and the court charges the jury that the State’s contention in this re[9]*9spect is correct.” Defendant excepted to this part of the charge. This instruction was upon the effect of the evidence, and not being requested by either party in writing, the giving of-it was violative of section 33z6 of the Code, (Edgar v. State, 43 Ala. 312; Beasley v. State, 50 Ala. 149, 152) ; and it took from the jury the right and duty to ascertain by their verdict whether the defendant was guilty of murder in the first or second degree, in violation of section 4857 of the Code. — Cobia v. State, 16 Ala. 781; Johnson v. State, 17 Ala. 618; Levison v. State, 54 Ala. 520; Brown v. State, 109 Ala. 70, 74 et seg.; Swoope v. State, 115 Ala. 40.
(2.) It does not follow, however, that it is the duty of the court to affirmatively instruct the jury in all-murder cases that they would be justified in-finding the defendant guilty of a less degree of murder than the first degree. To the contrary, it is only by force of the latter statute — § 4857 — that the duty is upon the trial court in a case of this class to instruct the jury in definition of murder in each degree, and to submit to them the ascertainment of the degree in which the defendant is guilty if guilty of murder-’ at -all. In the absence of-this statute the court in a proper case might well charge the .jury on request in writing that -the defendant is guilty of murder in the first degree or of nothing; and in the absence of both the statutes referred to — § 3326 and § 4857 — the court might so charge of its own motion. The operation and effect of the statutory provisions, therefore, is merely to prevent the court from charging on the effect of the evidence except when moved thereto by a party; and to require it to leave to the jury the ascertainment of the degree of murder upon a conclusion of guilt of murder in some degree, and this it must do though on the undisputed evidence the defendant is clearly guilty of murder in the first degree. But when it has done this, it is under no sort of duty to further instruct the jury, at the written request of the defendant or otherwise, that on the evidence the defendant, if guilty at all, might be guilty [10]*10of a lower offense than murder in the first degree, when the evidence without conflict shows that the defendant is either guilty of malicious, willful, deliberate and premeditated homicide or that he struck in self-defense and is not guilty of any offense. The statutes prevent the court from so charging the jury, and they require the ascertainment of the degree of murder, if guilt is found, to be left to the jury; but they do not require the court in such case to affirmatively charge the jury on defendant’s request that on the evidence the defendant may be guilty of a less crime than murder in the first degree. And, therefore,'when the court has complied with the statute in respect of defining murder in the first and second degrees and leaving it to the jury to determine in which degree the defendant is guilty if at all, such charges should not be given. What we have said in this paragraph has reference to the construction and operation of the statutes cited in the abstract, and is not to be taken as indicating any opinion on our part as to Avhether in their absence the trial court would have been justified in charging the jury that on the facts of this case the defendant was guilty of murder in the first degree if guilty of any offense.
(3.) The homicide involved here Avas either murder in the first or second degree, or it was justified on the ground of self-defense. There was, therefore, no occasion for the trial court to give the laAV of manslaughter in charge to the jury, and it properly refused charges, of which that marked D is a sample, which would have authorized the jury to find, or tended to mislead them to the conclusion that they would be justified in finding the defendant guilty of manslaughter only. — Rogers v. State, 117 Ala. 9, 15.
(4.) To say the least of charges I. J. and K. refused to defendant, they tended to confuse and mislead the jury. A man may' form and entertain a design to take life to save himself from grievous bodily harm or death, and may in pursuance of such design actually take life in self-defense and be justified therein; but to say that a homicide may be Avillful, deliberate and premeditated and yet justifiable — to use the statutory words defining [11]*11murder in the first degree to characterize under certain conditions a lawful homicide — is a practice Avell calculated to confound the jury and to lead to Avholly umvarranted results. And in a legal sense, moreover, one cannot he said to act Avith Avillfulness, deliberation and premeditation Avhen his act, though according with his intent at the moment, is coerced by an impending and immediate necessity to take life that his oAvn life may be preserved. These charges were properly refused.
What Ave have said will serve to indicate in part the grounds of our conclusion that the court committed no error in refusing charges asked by defendant Avhich are not specially mentioned; and we find no error in the rulings of the court on charges requested by the State.
(5.) So far as the case had been developed, when it was proposed for the Avitness Will Bishop to testify that his father had invited the defendant to supper on the evening of the homicide, that fact was entirely irrelevant and impertinent, and the court properly excluded the proposed testimony. If this testimony had been offered after the defendant had testified that when he met the deceased on the occasion of the homicide he was on his Ava,y to the elder Bishop’s house in acceptance of such an invitation from him, the court would doubtless have alloAved it to go to the jury.
(6.) The prosecution having admitted for the purpose of avoiding a continuance a shoAving as to what Darby,, defendant’s absent Avitness, would testify if present, in which it Avas set forth that Darby would depose to certain material facts in the case, the trial court, after this shoAving had been put in evidence by the defendant, allowed the prosecution to show by a Avitness that Darby had said to him that he knew nothing about the case. This Avas clearly error. The showing stood in the stead of Darby’s testimony; for all the purposes of the trial it Avas his testimony as a witness on the stand. And he could no more be impeached in respect of it by evidence of contradictory or inconsistent statements made by him, Avithout first calling his attention to them and asking him whether he made them, than if he had personally appeared and testified before the jury. The fact that [12]*12tlie witness was not before the jury in reality, and that of consequence the prosecution had no opportunity to lay a predicate for his impeachment by proof of inconsistent statements, can make no difference in the application of the rule. The State placed itself at this disadvantage by admitting liis testimony in his absence; and this was matter for consideration by the solicitor in determining whether to make the admission or submit to a continuance.^ — Pool v. Devers, 30 Ala. 672, 676.
The other exceptions to the rulings of the court on the admissibility of testimony have been considered, and found to be without merit.
Neversed and remanded.