SOMERVILLE, J.
1. It was no ground upon which to quash the venire of special jurors summoned for the trial of the defendants, that one of those named on the list was a minor under twenty-one years of age; that another was a female instead of a male; that another had been dead for more than a year; that another was a non-resident of the county, or that there was a mistahe in the name of still another. These errors made it the duty of the court to direct the names of such disqualified persons to be discarded, and others to be summoned to supply their places, unless, in the opinion of the court, the ends of justice required otherwise. Code, 1886, § 4322; Roberts v. The State, 68 Ala. 515; Fields v. The State, 52 Ala. 348; Jackson v. The State, 76 Ala. 26.
2. Under the act approved February 28th, 1889 (Acts 1888-89, pp. 77-79), a single defendant, who is on trial alone for a capital offense, is entitled to twenty-one peremptory challenges. It is futther declared as follows in section 2 of the same law: “When two or more defendants are on trial jointly for a capital offense, or other felony, each defendant shall be entitled to one-half of the peremptory challenges allowed by this act.” In this case, one of the defendants was allowed eleven peremptory challenges, and the other ten. This was a compliance with the statute, as nearly [127]*127as was practicable, the personality of jurors not being capable of enumeration by vulgar fractions.
3. Tbe defendants were permitted to prove their good character for peace in the neighborhood in which they resided, which was clearly relevant to the issues arising on an indictment for murder. There was no effort made by the State to assail their character for truth and veracity, although they testified as witnesses in their own behalf. The court properly ruled, that the evidence introduced as to good character for peace and quiet, could not be looked to for the purpose of sustaining the credibility of the parties as witnesses. Morgan v. State, 88 Ala. 223.
4. The law of self-defense was clearly and accurately stated to the jury in the general charge of the court, and in terms substantially enunciated in the past decisions of this court.—Storey v. State, 71 Ala. 329; De Arman v. State, Ib. 351. This charge must be construed as a whole, in connection with the evidence, and not in disconnected parts, or by garbled extracts.— Williams v. State, 83 Ala. 68.
5. And among other things, it was correctly asserted in substance that, after the intentional killing of the deceased by defendant with a deadly weapon had been proved, the burden rested on the defendant to prove a pressing necessity on his part to take life in self-defense, unless this fact arises out of the evidence produced against him to prove the homicide. The onus, therefore, rests on the defendant, in such case, to show that he could not safely retreat without apparently increasing his peril. This must be so, for the inability to safely retreat is one of the elements of fact which enters into and creates the necessity to kill.—Carter v. State, 82 Ala. 13. If there be a safe mode of successful retreat, there can be no necessity to kill, unless the appearances surrounding the defendant reasonably indicate the contrary. Whart. Cr. Ev. (8th Ed.), § 334; Webster v. Com., 5 Cush. 295. The rule as to the onus of proof on this point is stated in accordance with the above view in Cleveland v. The State, 86 Ala. 2, which is of later authority than Brown v. The State, 83 Ala. 33, where the contrary rule seems to be asserted. We believe the doctrine of Cleveland's Case to be correct, and adhere to it.—Lewis v. State, 88 Ala. 11.
6. The burden was on the State, however, to show that the defendants were in fault in bringing on, or provoking the difficulty,—not on the defendants to prove that they did not provoke it.—Brown v. State, 83 Ala. 33; McDaniel v. State, 76 Ala. 1.
[128]*1287. There was no error in that portion of the charge which asserts that the use of a deadly weapon, in cases of homicide, raises the presumption of malice, unless such presumption is repelled by the evidence which proves the killing. Sylvester v. State, 72 Ala. 201.
8. It was unquestionably the law, as charged by the court, that if the defendant, Ben.^Gibson, sought the difficulty with the deceased for the purpose of chastising or beating him, on account of the alleged abuse of defendant’s father, or other like reason, and, in pursuance of such purpose, armed himself with a pistol, to be used in the event it became necessary, and he did use it, and killed deceased with the weapon, pursuant to such purpose, then this would be murder, although it was necessary to use the pistol, in order to save his own life, or his body from great harm.- — Ex parte Nettles, 58 Ala. 268.
9. There was evidence tending to show a conspiracy on the part of the defendants to attack the deceased — -circumstances from which the jury were authorized to infer a common design, at least, to assault and beat him. Each would, therefore, be criminally responsible for the acts of the other in prosecution of the design for which they combined; i. e,, for everything done by the confederates, which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. The law on this subject is fully discussed in Williams v. The State, 81 Ala. 1; 60 Amer. Rep. 133; s. c., 9 Crim. Law Mag. 480; and in Martin v. State, ante, present term.
The charges of the court seem to conform to the principles declared in these decisions.—Amos v. State, 83 Ala. 1.
10. It was unnecessary to prove any express agreement on the part of the defendants to attack the deceased, or to kill him. An implied understanding, established by circumstantial evidence, would be sufficient. And the presence of one of the defendants, aiding, abetting and encouraging the other in making an attack on the deceased, might justify the jury in holding him criminally responsible for the homicide which resulted in the death of the party assailed.—Williams v. State, 81 Ala. 2, supra.
11. Many of the charges requested by the defendants demanded for them an acquittal, of every grade of homicide unless the evidence proved beyond a reasonable doubt that the killing was done with malice aforethought, deliberately, [129]*129willfully and premeditatedly, which are ingredients only of murder in the first degree. The effect of these charges was to assert that, unless defendants were convicted of murder in the first degree, they could not be convicted of any lower grade of homicide. These charges were obviously erroneous, and their refusal was without error.
12. We have examined all the charges in the record — those given by the court, as well as those refused on request of the defendant. None of them are numbered, or otherwise identified, except by pencil-marks, apparently made by counsel. This leads to embarrassment in their discussion, and should be obviated on another trial.
13-14. We discover but one error in any of these numerous rulings.
Free access — add to your briefcase to read the full text and ask questions with AI
SOMERVILLE, J.
1. It was no ground upon which to quash the venire of special jurors summoned for the trial of the defendants, that one of those named on the list was a minor under twenty-one years of age; that another was a female instead of a male; that another had been dead for more than a year; that another was a non-resident of the county, or that there was a mistahe in the name of still another. These errors made it the duty of the court to direct the names of such disqualified persons to be discarded, and others to be summoned to supply their places, unless, in the opinion of the court, the ends of justice required otherwise. Code, 1886, § 4322; Roberts v. The State, 68 Ala. 515; Fields v. The State, 52 Ala. 348; Jackson v. The State, 76 Ala. 26.
2. Under the act approved February 28th, 1889 (Acts 1888-89, pp. 77-79), a single defendant, who is on trial alone for a capital offense, is entitled to twenty-one peremptory challenges. It is futther declared as follows in section 2 of the same law: “When two or more defendants are on trial jointly for a capital offense, or other felony, each defendant shall be entitled to one-half of the peremptory challenges allowed by this act.” In this case, one of the defendants was allowed eleven peremptory challenges, and the other ten. This was a compliance with the statute, as nearly [127]*127as was practicable, the personality of jurors not being capable of enumeration by vulgar fractions.
3. Tbe defendants were permitted to prove their good character for peace in the neighborhood in which they resided, which was clearly relevant to the issues arising on an indictment for murder. There was no effort made by the State to assail their character for truth and veracity, although they testified as witnesses in their own behalf. The court properly ruled, that the evidence introduced as to good character for peace and quiet, could not be looked to for the purpose of sustaining the credibility of the parties as witnesses. Morgan v. State, 88 Ala. 223.
4. The law of self-defense was clearly and accurately stated to the jury in the general charge of the court, and in terms substantially enunciated in the past decisions of this court.—Storey v. State, 71 Ala. 329; De Arman v. State, Ib. 351. This charge must be construed as a whole, in connection with the evidence, and not in disconnected parts, or by garbled extracts.— Williams v. State, 83 Ala. 68.
5. And among other things, it was correctly asserted in substance that, after the intentional killing of the deceased by defendant with a deadly weapon had been proved, the burden rested on the defendant to prove a pressing necessity on his part to take life in self-defense, unless this fact arises out of the evidence produced against him to prove the homicide. The onus, therefore, rests on the defendant, in such case, to show that he could not safely retreat without apparently increasing his peril. This must be so, for the inability to safely retreat is one of the elements of fact which enters into and creates the necessity to kill.—Carter v. State, 82 Ala. 13. If there be a safe mode of successful retreat, there can be no necessity to kill, unless the appearances surrounding the defendant reasonably indicate the contrary. Whart. Cr. Ev. (8th Ed.), § 334; Webster v. Com., 5 Cush. 295. The rule as to the onus of proof on this point is stated in accordance with the above view in Cleveland v. The State, 86 Ala. 2, which is of later authority than Brown v. The State, 83 Ala. 33, where the contrary rule seems to be asserted. We believe the doctrine of Cleveland's Case to be correct, and adhere to it.—Lewis v. State, 88 Ala. 11.
6. The burden was on the State, however, to show that the defendants were in fault in bringing on, or provoking the difficulty,—not on the defendants to prove that they did not provoke it.—Brown v. State, 83 Ala. 33; McDaniel v. State, 76 Ala. 1.
[128]*1287. There was no error in that portion of the charge which asserts that the use of a deadly weapon, in cases of homicide, raises the presumption of malice, unless such presumption is repelled by the evidence which proves the killing. Sylvester v. State, 72 Ala. 201.
8. It was unquestionably the law, as charged by the court, that if the defendant, Ben.^Gibson, sought the difficulty with the deceased for the purpose of chastising or beating him, on account of the alleged abuse of defendant’s father, or other like reason, and, in pursuance of such purpose, armed himself with a pistol, to be used in the event it became necessary, and he did use it, and killed deceased with the weapon, pursuant to such purpose, then this would be murder, although it was necessary to use the pistol, in order to save his own life, or his body from great harm.- — Ex parte Nettles, 58 Ala. 268.
9. There was evidence tending to show a conspiracy on the part of the defendants to attack the deceased — -circumstances from which the jury were authorized to infer a common design, at least, to assault and beat him. Each would, therefore, be criminally responsible for the acts of the other in prosecution of the design for which they combined; i. e,, for everything done by the confederates, which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. The law on this subject is fully discussed in Williams v. The State, 81 Ala. 1; 60 Amer. Rep. 133; s. c., 9 Crim. Law Mag. 480; and in Martin v. State, ante, present term.
The charges of the court seem to conform to the principles declared in these decisions.—Amos v. State, 83 Ala. 1.
10. It was unnecessary to prove any express agreement on the part of the defendants to attack the deceased, or to kill him. An implied understanding, established by circumstantial evidence, would be sufficient. And the presence of one of the defendants, aiding, abetting and encouraging the other in making an attack on the deceased, might justify the jury in holding him criminally responsible for the homicide which resulted in the death of the party assailed.—Williams v. State, 81 Ala. 2, supra.
11. Many of the charges requested by the defendants demanded for them an acquittal, of every grade of homicide unless the evidence proved beyond a reasonable doubt that the killing was done with malice aforethought, deliberately, [129]*129willfully and premeditatedly, which are ingredients only of murder in the first degree. The effect of these charges was to assert that, unless defendants were convicted of murder in the first degree, they could not be convicted of any lower grade of homicide. These charges were obviously erroneous, and their refusal was without error.
12. We have examined all the charges in the record — those given by the court, as well as those refused on request of the defendant. None of them are numbered, or otherwise identified, except by pencil-marks, apparently made by counsel. This leads to embarrassment in their discussion, and should be obviated on another trial.
13-14. We discover but one error in any of these numerous rulings. The following charge, requested by the defendants, is supported by their own testimony rendered on the trial, which tends not only to reduce the grade of homicide, but to make out a case of self-defense: “The court charges the jury, that if they are reasonably satisfied, from all the evidence in this case, that the defendant Ben Gibson was really, or to ordinary appearances, in imminent peril to his life or limb, from which there was no reasonable means of escape, and that he neither provoked nor encouraged the difficulty, and, under this reasonable apprehension, the defendant fired the fatal shot, and that he did not fire the fatal shot of malice, — then they should not find the defendant guilty of murder in either degree.” There can be no murder in either.degree', without malice. The most culpable phase of homicide, without the element of malice, is voluntary manslaughter. The charge does not demand an entire acquittal of all criminal responsibility for the act done, but a reduction of the verdict to- a finding for manslaughter. The testimony of the defendants themselves tended to support every phase of the instruction requested. It mattered not that this testimony may have sprung from parties deeply interested, and have been contradicted by many disinterested witnesses, so as to be entitled to but little weight in the estimation of the trial judge. It was for the jury, and not the court, to pass on the credibility of the witnesses, and the sufficiency of the evidence. Every prisoner at the bar is entitled to have charges given, which, without being misleading, correctly state the law of his case, and are supported by any evidence, howev er weak, insufficient, or doubtful in credibility. The charge under consideration was a correct enunciation of the law, and, being supported by the evidence, [130]*130its refusal must operate to reverse the judgment of conviction. — McDaniel v. State, 76 Ala. 1.
The other rulings of the court seem to us to be free from error.
The judgment is reversed, and the cause remanded for a new trial. In the meanwhile, the prisoners will be retained in custody until discharged by due process of law,